Law Clerk Polarization and Credentials

By Mike Dorf

In a pair of articles in last Tuesdays NY Times, Adam Liptak offered an interesting statistical snapshot of law clerk hiring by the Supreme Court.  The main article focused on how law clerks have become more ideologically polarized in recent years than a generation ago.  Although the article describes this as a general phenomenon, the accompanying graphic indicates that it is substantially more pronounced among the conservatives.  During the Roberts Court period, Justices Scalia and Thomas have hired no clerks who previously clerked for Democratic appointees, whereas the liberals have hired a small but substantial number of clerks who previously clerked for Republican appointees.  (The body of the story does note that Justice Breyer hires almost as many former clerks for Repubican appointees as from Democratic appointees.)  But even treating this as a phenomenon of the conservative Justices only, the article raises a number of interesting questions, including:

1) Why did Justice Scalia apparently abandon his former practice of hiring at least one moderate-to-liberal clerk to play devil's advocate?

2) Is the Court really more divided ideologically now than it was during the Burger years?

3) If not, what explains the fact that conservative Justices changed their hiring patterns?

4) Could it be the research (cited by the article) that shows that law clerks do appear to have (some) influence on Justices' votes?  That seems hard to believe, because Justices would certainly not think of themselves as being influenced by their law clerks, and thus not "afraid" of being persuaded or otherwise led by their clerks..

And so we are left with something of a puzzle.

Meanwhile, the second article on law clerk hiring is even more intriguing in at least one way.  This article describes how, with the exception of Justice Thomas, the Justices have, in recent years, overwhelmingly selected their law clerks from a very small number of very selective law schools.  The article then quotes a statement made by Justice Thomas in a February session at the University of Florida (which I praised here).  The article contains the following quotation from Justice Thomas:

“Self-proclaimed smart bloggers . . . referred to my clerks last year as TTT — third-tier trash,” he told students at the University of Florida in February. “That’s the attitude that you’re up against.”

Who are these self-proclaimed smart bloggers, I wondered, so I searched for the phrase "third tier trash" and discovered that "TTT" actually stands for "third tier toilet" or "third tier trash can," and is not used (by smart bloggers, not-so-smart bloggers, or, so far as I can tell, anybody) to refer to students who attend law schools ranked in the third tier (presumably by US News).  Instead, TTT is a term of derision for these schools themselves, insofar as some bloggers believe that some such schools hold out false hope to students who will pay big $$ in tuition without much prospect of landing a good (or any) job in law at all.  Perhaps Justice Thomas (reasonably) misunderstood TTT to be a term of derision for persons rather than for law schools, in much the way that the offensive term "white trash" refers to people.

In any event, I'm more interested in the assumption embedded in what Justice Thomas was saying.  Justice Thomas more or less equates going to an elite law school with unearned privilege.  Now it happens that elite law schools and universities more broadly do in fact draw their students from a pool that is disproportionately privileged.  But not wholly so, as Justice Thomas himself obviously knows, having attended Yale Law School despite growing up poor in rural Georgia.

Although not stated in expressly political terms, it is hard not to hear in Justice Thomas's words a by-now standard conservative trope: Elite universities are bastions of liberal thought, which, in turn, is elitist.  In this view, even someone like Barack Obama, who attended Columbia College and Harvard Law School despite coming from modest means, is part of the liberal elite.  Thomas himself is not automatically elitist under this approach because, despite attending Yale, he resists its supposedly dominant ideology and frequently bashes his alma mater.

Finally, lest there be any confusion on the point, I do think there is much to be said for SCOTUS Justices selecting their clerks from a wider range of law schools.  I just don't like the cultural/political resonance in the way Justice Thomas made his point.