Former SCOTUS law clerks are highly coveted for their skill and connections, but are they worth it?

September 22, 2020 - Karessa Weir

MSU Political Science Professor Ryan Black has published research to show that former Supreme Court clerks enjoy significant influence over their former bosses.

In "The Influence of Personalized Knowledge at the Supreme Court: How (Some) Former Law Clerks Have the Inside Track," published in Political Research Quarterly, Dr. Black and Dr. Ryan J. Owens (University of Wisconsin-Madison) reviewed 40 years of judicial votes and found an attorney who formerly clerked for a justice is 16 percent more likely to capture that justice's vote than an otherwise identical attorney who never clerked.

"Former clerk influence is substantial, targeted, and appears to come from clerks' personalized information about their justices," Drs. Black and Owens wrote. "These results answer an important empirical question about the role of attorneys while raising normative concerns over fairness in litigation."

Supreme Court law clerks hit a "jackpot" as young attorneys who can then receive huge signing bonuses, and hefty salaries from private practices who are paying for the inside information and influence over their previous justices.

Drs. Black and Owen found that the investment by the private firms are generally sound because those clerks "provide a signficant but highly targeted advantage in terms of capturing justices' votes."

"These results have a number of important implications. Former clerks regularly litigate at the Court. Since the start of the Roberts Court era, fully 75 percent of all argued cases have observed at least one former law clerk appear. Their role, in other words, is pervasive. Moreover, the fact that inside information leads former law clerks to capture a justice’s vote seems normatively problematic. Greater legal acumen and stronger legal arguments should lead to success. The ability to “see the man behind the curtain” through personal exposure to decision makers should not. More broadly, the results also offer insight into revolving door lobbying success. Lobbying surely is not the same as litigation; nevertheless, the logic of our findings suggests that revolving door lobbyists, like former clerks, may succeed because they capitalize on personalized information that few others enjoy," they wrote.

The research was featured in a Sept. 21 New York Times article titled "Law Firms Pay Supreme Court Clerks $400,000 Bonuses. What Are They Buying?". The article by Adam Liptak points out that the former clerks make significantly higher salaries than the Supreme Court Justices themselves.

It was also the subject of the National Law Journal's article "Former SCOTUS Clerks Are More Likely to Win Their Justices' Votes, Study Asserts."

Dr. Black's research focuses on U.S. Supreme Court decision making. He has published four scholarly books with top university presses as well as more than 50 articles or chapters in over two dozen different academic journals. He is the co-principal investigator on Project SCOTUSNotes, a National Science Foundation funded academic crowdsourcing project to transcribe archival documents from the Supreme Court’s most secretive meetings. Visit Project SCOTUSNotes to learn more.