Harvard-Yale Duopoly on Clerks Doesn’t Fit Barrett’s Background

Justice Amy Coney Barrett, who graduated from Notre Dame’s law school and returned there to teach for more than a decade, could help break elite law school graduates’ lock on Supreme Court clerkships.

That’s the hope, anyway, for those who would like to see the justices draw on a broader pool of talent when picking the often young lawyers who help select what cases to hear and assist in drafting opinions.

Since the 2017 term—the first full one with a Trump nominee—more than half of all the 175 clerks came from two schools: Harvard or Yale, according to Bloomberg Law research.

The Top 10 law schools account for 85%, and just 15% of Supreme Court clerks graduated from the more than 200 remaining U.S. law schools.

“In terms of academic diversity, there is none,” said Washington and Lee professor Todd Peppers, who studies Supreme Court clerkships. The justices’ current practices suggest they don’t put much of a premium on casting a wide net when hiring clerks.

Barrett’s hiring practices as a federal appeals court judge suggest she may take a different approach.

At least two of Barrett’s first 12 clerks during her three-year tenure on the U.S. Court of Appeals for the Seventh Circuit came from Notre Dame. She recruited the remainder largely from top law schools in the Illinois-based circuit such as the University of Michigan, University of Chicago, and Northwestern plus a couple from Yale and the University of Virginia.

More importantly, perhaps, she will be the only current justice who didn’t graduate from either Harvard or Yale. The remaining eight justices are evenly split between the two.

The fact that Barrett went to Notre Dame and taught there suggests that she’s more comfortable hiring at least from her alma mater, if not other schools outside the top 10, said former Gorsuch clerk, Michael Francisco.

Barrett could help break the “incestuous little feedback loop” of the current hiring process, Peppers said.

Each active justices gets four clerks, while retired justices, like David Souter and Anthony Kennedy, get one.

Thomas the Exception

On the current court, Justice Clarence Thomas stands out for hiring clerks from beyond top 10 law schools. In 2008, Thomas’ chambers consisted entirely of clerks who graduated outside of the top 10 —George Mason, Rutgers, George Washington University, and Creighton.

Since 2017, Thomas has hired 26% of his clerks from Harvard or Yale, which is just above the 21% that he’s selected from schools outside of the top 10.

“Justice Thomas is very open-minded about people, and that sensibility is reflected in his approach to law clerk hiring,” said former Thomas clerk Helgi Walker.

Thomas believes there are many young lawyers who could do the job well, but maybe they didn’t have the same advantages as those who were able to go to the most elite schools, Walker said. He “likes to give them an opportunity to compete.”

Justices Samuel Alito and Neil Gorsuch, too, seem more willing than their colleagues to hire outside of the most elite schools.

Gorsuch has hired a quarter of his clerks from Harvard or Yale, and 38% outside of the top 10. Although Alito has hired 47% of his clerks since 2017 from the two Ivies, he’s taken 41% from lower-tiered schools.

On the other end of the spectrum, 82% of Chief Justice John Roberts’ clerks since 2017 are from Harvard or Yale. And neither Justice Ruth Bader Ginsburg nor Elena Kagan, former Harvard Law dean, ever hired outside the top 10 during that same time period.

Barrett Effect

Francisco noted, however, that the justices’ hiring patterns early in their tenures don’t necessarily indicate how they are going to hire throughout their careers.

Many new justices often hire clerks who served for other justices, presumably to help them learn the ropes.

So looking only to those who have clerked for Gorsuch—who started at the end of the court’s 2016 term—could give a potentially misleading picture, Francisco said.

It’s even harder to predict how a justice will choose clerks based on just a few years of hiring for the circuit court bench, like Barrett.

The courts of appeal have an agreed upon hiring process, which can begin soon after someone’s first year of law school. So many of the best candidates already have a clerkship lined up by the time a new judge is looking for them, Francisco said.

Pipeline Problems

The justices recognize that a lack of academic diversity is a problem.

There “are real pipeline issues,” Kagan said while testifying about clerk diversity at a 2019 hearing before a House Appropriations subcommittee.

“All of our law clerks, because they serve with us for a year and have to hit the ground running, come from a court of appeals clerkship at one point,” Alito said at the hearing. “They need that for the training.”

In reality, it is even a smaller pipeline than that, said Peppers. Justices pull from a small group of “feeder judges,” prominent court of appeals court judges who send several clerks to the high court. D.C. Circuit Judge Merrick Garland is among the most prolific feeder judges.

Peppers, though, thinks “the justices just aren’t looking hard enough” for diverse candidates.

In some ways, they are talking out of both sides of their mouths, Peppers said.

They defend the use of often inexperienced recent graduates for such important work by saying that they don’t delegate too much of the work to their clerks. But then they’ll say they can’t take a risk that one of their four law clerks won’t be up to the task.

“I just don’t think diversity is a priority for them,” Peppers said.

Francisco said it’s an embarrassment of riches when it comes to the justices’ choice of Supreme Court clerks. “There’s much more supply than demand.”

And getting a Supreme Court clerkship is the brass ring, the golden ticket,” Peppers said.

It can lead to signing bonuses of $400,000 at law firms and opens up doors for positions at law schools and the Justice Department, Peppers said.

“Why are these avenues open only to those at the most elite institutions?” Peppers asked.

Moreover, the lack of diversity is also bad for justices, who may use clerks as sounding boards Peppers said.

“But if you are hiring people that look like you, and sound like you, and are educated like you, there’s not much value in have those clerks as sounding boards.”