Document Type

Article

Publication Title

Vanderbilt Law Review

Abstract

Our main goal in this article is to present what we believe to be our key insight-that the future direction of the Court will be determined not only by the wishes of the President, Congress, the Justices themselves, opinion leaders, or even the American people, but also by the institutional structures that have grown up around the Court in support of its work. Those institutional structures have become increasingly polarized over the past two decades, strengthening partisan approaches to the law. The particular institution on which we focus is the Supreme Court clerkship. The institution is important for at least two reasons. The first is spelled out in a recent empirical analysis examining "the extent to which both [each] Justice's personal policy preferences and those of his or her law clerks exert an independent influence on the Justice's votes. The analysis found that "clerks' ideological predilections exert an additional, and not insubstantial, influence on the Justices' decisions on the merits" above and beyond the ideological orientation of each Justice. A second reason to pay attention to Supreme Court clerks is that they exert considerable influence on the legal profession and the law following the conclusion of their clerkships. Upon leaving the Court, former clerks typically find themselves in positions of power in government, private practice, or the academy and use those positions to transmit to others what they learned at the Court. The legal profession and, to a lesser extent, the general public thereby share vicariously in the law clerks' experiences. Above all, law students acquire their formative knowledge of the Court from professors who previously served as clerks or from other professors who have read the scholarship of those clerks. Through processes such as these, the clerks play a key role in communicating how the Supreme Court and, indeed, the judiciary as a whole work. Given this importance, legal scholars, political scientists, and journalists have lavished abundant attention upon the Supreme Court clerkship. Recent studies have detailed the history of the clerkship, clerk demographics and backgrounds, the selection process, the changing duties of the clerks while on the Court, and the ongoing debate over their influence upon the Court's written opinions. This Article adds to that scholarship by presenting the first comprehensive empirical study of the post-clerkship employment of Supreme Court clerks, and then using that data to flesh out a historical and institutional interpretation of how the clerkship is changing and why that change may matter. Using a list of former clerks provided by the Supreme Court, and searching through public records including archival sources; biographical information published by law firms, government agencies, and law schools; directories of law professors and practitioners; and secondary sources on the Justices and their clerks, this study has assembled data on the careers of over 90 percent of the clerks who served between October Term ("O.T.") 1882 and 2006.

First Page

1747

Volume

62

Publication Date

2009

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