Former law clerks wait for the arrival of the late Associate Justice Ruth Bader Ginsburg to arrive at the U.S.
She’s butting up against a new trend for those competing to join the ranks of constitutional lawyers, judges and scholars: the assumption that those graduating from law school must complete multiple lower level clerkships before hoping to clerk at the Supreme Court.
At more than $100,000 a year, a three-year law degree at one of the nation’s top law schools will cost you more than the median home.
Former Supreme Court clerks are at the top of the list for judgeships later in life, and such a clerkship is all but required to teach at a top law school or to work in places like the Office of the Solicitor General at the Department of Justice.
In that decade, it became more standard for graduates to apply to a SCOTUS clerkship after clerking for a lower court judge first.
From 1996 to 2016, 16 percent of Supreme Court clerks had clerked for more than one judge before making it to SCOTUS.
Of this year’s five Bristow Fellows, every single one has clerked for at least two years in the lower courts.
By OT2038, a typical SCOTUS clerk will have clerked for a magistrate judge, a bankruptcy judge, a district judge, and six different circuit court judges before doing a Bristow, and then finally, clerking.
So, if multiple clerkships are now a new requirement to clerk at the Supreme Court—and get that $400,000 bonus afterward—women who take circuit court clerkships must balance a roughly 1 in 20 shot at a SCOTUS clerkship against the biological reality that they have a limited number of years to have a family.
After four years of college, three years of law school, at least two years of multiple lower court clerkships , maybe even an additional year as a Bristow Fellow, and one year at the Supreme Court, many women are well into their 30s by the time they even start at a law firm.
And then there’s the economic concern.
2018 was the first year that women made up half of the clerks when Justice Brett Kavanaugh hired an all-female group of law clerks.
And the results of doubling down on this type of clerk will reverberate throughout the legal profession—the list of candidates for judgeships or the types of lawyers practicing before the Supreme Court will be increasingly drawn from law students who were already privileged in any number of ways.
Taking a close look at the individual justices over the course of this trend, it is hard to argue that the change in clerkship experience has fundamentally—or even perceptibly—altered their jurisprudence.
On the other hand, just 20 percent of Justice Neil Gorsuch’s clerks had multiple years clerking before showing up in his chambers during the same time.
So the additional clerkship might provide more training, but it’s not as if the second judge hires only after the first judge has seen the clerks’ work.
The resulting rush to hire the best clerks earlier and earlier in the first year of law school may well have contributed to those top students in place for the last couple years, encouraging judges to hire after year two.
Fifth Circuit Judge Gregg Costa, a former clerk to Chief Justice William Rehnquist, bemoaned this trend three years ago among the lower courts, writing that it was not good for the clerks, the judges or the profession of law.
I asked her whether she thought we needed more mentors for the women coming up behind her and how we could improve the numbers of female Supreme Court clerks.