Scalia Clerks Argued in Half the Supreme Court Cases This Term

Former clerks to the late Justice Antonin Scalia argued in nearly three dozen cases—or 52% of the docket— before the US Supreme Court this term, far more than clerks from any other chambers.

Former clerks are a mainstay of arguments at the court. But the heavy presence of ex-Scalia clerks, who argued some of the biggest cases since October, represents something more unusual, highlighting another element of his legacy.

A Bloomberg Law analysis of Supreme Court hearing lists shows 12 former Scalia clerks, all of whom are men, appeared in 31 arguments, accounting for more than half of the cases the justices heard. Six cases featured two Scalia alumni taking the lectern, often on opposite sides.

The cases include some of the term’s most notable, including one testing the president’s ability to fire a Federal Reserve Board governor. A former Scalia clerk also successfully pushed the court in Louisiana v. Callais to further limit the Voting Rights Act.

Attorneys who worked for Scalia have appeared in more than 20 cases a term on average over the past decade. Those numbers got a boost this term as Solicitor General D. John Sauer, who clerked for Scalia between 2005-06, filled out his office with other former clerks.

Two of his top deputies clerked for Scalia. Hashim M. Mooppan did so the year after Sauer, and Curtis E. Gannon, a year prior. Vivek Suri and Sopan Joshi, both assistants to the solicitor general, also clerked for the conservative justice. Joshi completed his clerkship under Justice Samuel Alito after Scalia’s death in 2016.

The term’s top advocate by sheer number of cases argued, Paul Clement, of Clement & Murphy, also was a Scalia clerk. Scalia argued only one case before the high court and didn’t necessarily set out to train great future Supreme Court lawyers, Clement said.

“He did it through the crucible of the clerkship,” said Clement, who served as solicitor general in the George W. Bush administration and has become one of the country’s most sought-after appellate attorneys.

Both Clement and Ed Whelan, a former deputy assistant attorney general who clerked for Scalia from 1991-92, pointed to Scalia’s unusual practice of having his clerks argue cases before him and among each other after the justices heard the petition.

“That was a highlight of the clerkship and also incredible preparation for argument before the court,” Clement said. “Because how many things in the law are more intimidating than arguing before Justice Scalia?”

“Scalia didn’t like oral advocates who hemmed and hawed or who hadn’t thought through the implications of their positions,” Whelan said.

The experience also doesn’t hurt when arguing before a conservative-led court that has embraced the interpretive methods Scalia spent decades advocating. Mentions of the late justice by name surged this term, with nearly three dozen in just the first three months of oral arguments alone.

Insider’s Game

Former clerks are a common sight at the lectern. They now argue a majority of a shrinking set of cases heard each term, showing just how rarefied the Supreme Court bar has become.

“If 50% of the cases feature a former clerk for one justice, that shows you the degree to which the court’s docket is dominated by insiders,” said Mitu Gulati, a University of Virginia law professor who studies Supreme Court advocacy.

He cited one study that found the court between 2003 and 2015 were more likely to grant review of petitions from a former Supreme Court clerk than a lawyer who didn’t clerk for a justice. Those clerks are “either so good or they just know the secret language of how you do things,” said Gulati.

Yet that doesn’t fully explain the abundance of Scalia clerks compared to other justices.

“Did Scalia do more to shape their careers?” Gulati asked. “That’s the deeper story here.”

The past few decades has also seen the rise of the “uber-law firm appellate practices,” Gulati added, often led by a star litigator who once clerked at the court.

Many of those star litigators came from Scalia’s chambers. In addition to Clement, the list includes Shay Dvoretzky, head of Skadden’s Supreme Court and appellate practice; Michael E. Kenneally, co-chair of Morgan Lewis’ appellate practice, and Kannon Shanmugam, who recently left Paul Weiss to launch the Supreme Court practice at Davis Polk.

Noel Francisco, another former Scalia clerk who’s now a partner at Jones Day, said just being in Scalia’s presence helps explain that picture.

“Just a grain of his wisdom, intellect, and humanity spread across all of his law clerks more than explains the success they have seen at the Supreme Court lectern,” Francisco, who was solicitor general in Donald Trump’s first administration and argued once before the justices in December, said in an email.

Former clerks helm other top Supreme Court practices as well. Elizabeth Prelogar, who clerked for Justices Ruth Bader Ginsburg and Elena Kagan before serving as solicitor general in the Biden administration, now leads Cooley’s appellate practice.

Jeff Wall, a former acting solicitor general and clerk to Justice Clarence Thomas, left Sullivan & Cromwell to join Gibson Dunn in April to lead its appellate practice.

The dominance of former clerks reflects a broader pattern in the Supreme Court talent pipeline. Almost all attended top law schools before their stints on the court. Scalia was especially candid about how much that pedigree mattered in his own chambers.

“He was not apologetic about basically hiring the best students from the best schools,” Judge Patrick Schiltz of the US District Court for the District of Minnesota said at an American Enterprise Institute event this year honoring Scalia’s legacy. Schiltz clerked for Scalia on the US Court of Appeals for the DC Circuit and during his first term on the Supreme Court.

Schiltz, who taught at Notre Dame Law School before his judicial appointment eventually helped one of his students, future Justice Amy Coney Barrett, secure a clerkship with Scalia.

“What Justice Scalia told me is, ‘I can’t make a mistake with a clerkship hire,’” Schiltz said. “‘I’ve got four and if one of them isn’t working it’s like a flat tire on a car.’”