Judicial scholars long have examined the external factors influencing U.S. Supreme Court decision making. Congressional and executive pressures, the Office of the U.S. Solicitor General, attorney experience, and the tactics of organized interests all have been found to be influential

Hermann, John R.

O\u27Connor, Karen

English

Trinity University

Trinity University Digital Commons @ Trinity Political Science Faculty Research Political Science Department 1995 The Clerk Connection: Appearances Before the Supreme Court by Former Law Clerks Karen O'Connor John R. Hermann Trinity University, jhermann@trinity.edu Follow this and additional works at: https://digitalcommons.trinity.edu/polysci_faculty  Part of the Political Science Commons Repository Citation O'Connor, K., & Hermann, J.R. (1995). The clerk connection: Appearances before the supreme court by former law clerks. Judicature, 78(5), 247-249. This Article is brought to you for free and open access by the Political Science Department at Digital Commons @ Trinity. It has been accepted for inclusion in Political Science Faculty Research by an authorized administrator of Digital Commons @ Trinity. For more information, please contact jcostanz@trinity.edu. HARRIS & EWlNG, COUECTION OF TliE SUPREME COURT OF THE UNITED STATES Justice Horace Gray (1882-1902) established the practice of employing a young law school graduate as a clerk. Judicial scholars long have exam­ined the external factors influenc­ing U.S. Supreme Court decision making. Congressional 1 and ex­ecutive2 pressures, the Office of the U.S. Solicitor Genera!,3 attorney experience,4 and the tactics of orga­nized interests5 all have been found to be influential. Until McGuire,6 the role of former U.S. Supreme Court law clerks as par­ticipants before the Court after com­pletion of their clerkships has failed to garner much scholarly attention. The clerks' experiences as clerks gives them immediate stature within an elite The authors thank Eliiabeth Hermann, Jeffrey Banos, and Robert Alex Morris for their assistance on this project. Toni House, public information officer for the U.S. Supreme Court, also helped by answering numerous inquiries as they arose in the course of conducting this research. 1. Murphy, CoNGRESS ANO THE CouRT (Chicago: Unh·ersicy of Chie<1go Press, 1967). 2. Scigliano, THE SUPREME CoURT AND TH£ PRESI­DENCY (New York: Free Press, 1971). 3. Salokar, THE SoL1C1TOR GENERAL: THE PoLmcs or LAw (Philadelphia: Temple University Press, 1992). 4. Calanter, Why the 'Haves' Come Out Ahead: The clerk connection: appearances before the Suprellle Court by former law clerks Former U.S. Sufrreme Court law clerks frequently use their unique experiences and knowledge to appear before the Court, and they partiapate more often than non-clerks with similar educational backgrounds. by Karen O'Connor and John R. Hermann segment of the bar. This is well illu� trated by the high percentage of former clerks who are later hired by the U.S. solicitor general's office, the most frequent and prominent player before the Court. Law firms also rec­ognize and exploit the clerk connec­tion, as evidenced by the yearly compe­tition to sign clerks that rivals the NBA draft. They offer clerks generous bo­nuses for their experience-as much as $35,000 on top of an $80,000 salary. 7 High-powered firms perceive that the clerk experience can give their clients a distinct advantage before the na­tion's highest court and that having Speculation on the limits of Legal Change, 9 LAw & Soc'Y Rtv. 95 (1974); McGuire, TH E SUPREME COURT BAR: LEGAL ELITES IN THE WASHINGTON COMMUNITY (Charlottesville, Va.: University Press of Virginia, 1993). 5. Tushnet, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 192!>-1950 (Chapel Hill, N.C.: University of North Carolina Press, 1987). 6. McGuire, supra n. 4. 7. Conlin, Decisions, Decisions, The Washingto­nian.June 1990, at 65; Kerlow, Supreme Court Payoff for Clerks: $3,,000 Bonus, Legal Times of Washing­ton, September 17, 1990. former clerks on their staff increases their prestige. There is no dispute concerning the role that clerks play in screening the more than 7,000 petitions that come before the Court each year for review. The clerks' experience in winnowing down these petitions to the 100 or so cases argued each year is invaluable. It gives clerks the opportunity to see first­hand what issues, facts, arguments, or forms of presentation styles appeal to their justice as well as to the other eight. One former Rehnquist clerk has KAREN O'CONNOR is a professor of political science at Emory University. JOHN R. HERMANN is receiving his Ph.D. in May from Emory University and has taken a position as assistant professor at Trinity University. gone so far as to publish an article titled "Teachings of the Rehnquist Court: The Chiefs former clerk offers a dozen tips for presenting Cases to March-April 1995 Volume 78, Number 5 judicature 247 Figure 1 Participation rates of former Supreme Court law clerks before the Court 51% 40%- 37% 40% Table 1 Former clerk participation rates in cases orally argued before the Supreme Court, 1979 term 26% 20%-Clerk participation Number of cases Percentage Counsel Amicus Years of clerk service: 1958-85 Participation years: 1979-92 N=738 Counsel and amicus Counsel or amicus Yes No Total 23 110 133 Years of clerk service: 1958-85 17.29 82.71 100.00 Table 2 Individual justices' clerk participation rates Participated as: Number Counsel Counsel the Nine. "8 While this article is undoubtedly helpful to practitio­ners, it cannot replace the firsthand experience of serving on the Court. Said one former clerk, "Being a clerk is most help­ful, I think, in the certiorari pro­cess-knowing how petitions are reviewed, what role law clerks play versus the justices, or know­ing who's your audience and what are the constraints on your audience. "9 Justice* of clerks Counsel Amlcus and amicus or amlcua I The purpose of this analysis is to determine the frequency with which former U.S. Supreme Court law clerks appear as direct and third parties before the Court. It also examines whether the clerk experience triggers higher rates of participation be­fore the Court than non-clerks with similar educational back­grounds. Mean Black Blackmun Brennan Burger Clark Douglas Harlan Marshall O'Connor Powell Reed Rehnquist Stevens Stewart Warren White 44 25 56 81 66 28 31 31 64 20 53 18 43 26 60 37 67 .38 .39 .27 .51 .44 .36 .36 .44 .41 .46 .29 .59 .47 .48 .35 .60 .40 .33 .24 .48 .29 .14 .14 .29 .35 .32 .23 .45 .58 .58 .48 .68 .39 .52 .25 .66 .25 .40 .20 .45 .36 .42 .28 .49 .44 .28 .22 .50 .35 .35 .26 .44 .46 .58 .27 .77 .37 .47 .28 .55 .19 .22 .14 .27 .34 .40 .25 .49 Data on the 738 U.S. Supreme Court law clerks who served dur­ *Justices Burton, Fortas, Goldberg, and Whittaker were excluded because each had fewer than 1 O clerks during their tenures. ing the 1958-85 terms was ob­tained from the Supreme Court. Using Lexis, the name of each clerk was entered to determine if the clerk had participated as counsel, amicus curiae, or both before the Court during the 1979-92 terms.10 To ensure the reliability of these findings, every tenth clerk included in the data base was rechecked to confirm that the same results were yielded. A clerk was considered to have participated as counsel or amicus if his or her name appeared on the brief submitted to the Participation years: 1979-92 Court. In addition, for the 1979 term, all cases orally argued before the Court were examined.11 8. Guiffra, Teachings of the &hnquist Court, The Recorder, Oct. 17, 1991. 9. McGuire, supra n. 4, at 162. 10. Lexis  established its data set with 1979 as the beginning term. Where questions arose concern­ing common names, Martindale-Hubbell was cross­referenced, and as a last resort, individuals were contacted personally to ascertain their status. 248 Judicature Volume 78, Number 5 March-April 1995 Participation rates As Figure I illustrates, clerks are clearly active participants before the 11. No data base exists for counsel who orally ar­gue cases. Although only one term was examined, Caldeira and Wright argue that there appears to be no reason to believe that the findings would be much different for any other term. See Caldeira and Wright, Organized Interests and Agenda Setting in the U.S. SuprttM Court, 82 AM. PoL. Sci. REv. 1109, 1123 (1988). Figure 2 Clerks' vs. non-clerks' participation rates Bl Clerks 60%- • Non-clerks 0% Counsel Amicus Counsel and amicus N=109 Years of clerk service: 1969-79 Participation years: 1979-92 Supreme Court. More than half of the clerks from the 1958-85 terms later participated as either counsel or amicus at least one time before the Court. Moreover, 37 percent of the clerks have been listed as counsel on briefs filed before the Court, 40 per­cent have filed an amicus curiae brief, and 51 percent have participated in one or the other activity. As Guiffra Jr. has noted, clerks are well suited to file briefs at the Court because they enjoy unique knowledge of the internal dy­namics of the justices' and the Court's decision-making processes.12 Clerks probably know which "buttons to push" to persuade individual justices as well as the Court as an institution to review their cases. The Court itself ap­pears well aware of this clerk advan­tage. Court rules dictate that former clerks cannot file briefs or appear be-12. Guiffra, supra n. 8. 13. For purposes of this analysis, individual jus­tices must have had at least 10 clerks work during their tenure. This step was taken to ensure that par­ticipation rates did not occur by chance, but were part of a systematic pattern. Thus, four justices were eliminated: Burton, Fortas, Goldberg, and Whittaker. 14. To ensure that all clerks had an equal oppor­tunity of being matched with a non-clerk, begin­ning with the 1969 term the first clerk listed alpha­betically for each justice was recorded. For the 1970 term, the second individual who clerked for each justice was chosen, and so forth. This method yielded 109 clerks. 15. For example, if clerk X was editor-in-chief, the second ranking editor of the Y Law Review was selected, making that person the match. Con­versely, if clerk X was not the editor-in-chief, the editor-in-chief was selected as the match. 55% Counsel or amicus fore the Court for two years after they leave their clerkship. Another measure that illuminates the important role former clerks play in the Supreme Court bar is the frequency in which they actually appear before the Court to argue their cases. As Table 1 illus­trates, for example, former clerks orally argued 17 percent of the 133 cases heard by the Supreme Court during the 1979 term. Former clerks are not only ac­tive participants as counsel or amicus be-fore the Court, but they also fre­quently argue cases. Thus far, former clerks' participa­tion rates have been examined. While this inquiry examines clerk participa­tion in general, it does not offer in­sights about the activities of individual justices' clerks. As Table 2 illustrates, the former clerks of Justices Black­mun, Brennan, Harlan, and Stevens generally had average or higher than average participation rates. In con­trast, clerks who worked for Justices Clark, Douglas, O'Connor, Rehnquist, Warren, and White generally partici­pated at rates lower than the mean par­ticipation rate. This finding suggests that the participation rates of the clerks might be explained by the ori­entation toward litigation clerks have learned from working with a particular justice. It may be that some justices stress the importance of appellate work or encourage their clerks to seek employment in environments where the chances of participating in Su­preme Court litigation are greater.15 Clerks versus non-clerks To test whether former Supreme Court law clerks participate as counsel or amicus at greater rates than their counterparts with similar educational backgrounds, non-random matched pairs were used. Using the 1969-79 terms, one clerk who served with each justice each term was matched with a non-clerk. The examination was nar­rowed to a 10-year period since using a much larger sample is not likely to re­sult in any appreciable difference.14 Non-clerks were selected for inclu­sion based on three criteria: First, to ensure comparable educational pres­tige, each non-clerk had to graduate from the same law school as his or her matched clerk. Second, to ensure simi­lar education success, each non-clerk had to serve in the highest possible editorial position on his or her respec­tive law school review or journal. 15 Third, the non-clerk's service on the editorial board had to occur two years prior to the date of the law clerk's ser­vice on the Court. This final measure was obtained by averaging the aggre­gate period from the clerks' law school graduation dates to the time the clerks worked on the Court. Ao, Figure 2 illustrates, former clerks were more active before the Supreme Court than non-clerks. Individuals who clerked during the 1969-79 terms were almost twice as likely later to serve as counsel or amicus than those who had not clerked. ***** The fact that an individual clerked for a justice of the U.S. Supreme Court increases the probability that the clerk will later serve as either counsel or amicus before the Court by nearly 100 percent. Clerks clearly become part of an elite Supreme Court community. The clerks understand the internal de­cision-making processes of the justices as well as the Court. With this in mind, both government and private law firms actively recruit clerks to act later as players before the Court. Clerk participation before the Court warrants more scholarly attention. Fu­ture studies might examine how often each clerk participates as a direct and third party and their respective success rates. It is likely that the insider knowl­edge of the clerks endow them with the mind of "repeat player" status that only many years of participation and practice afford to others. By examin­ing participation and success rates of clerks before the Court, a more sophis­ticated understanding of the factors influencing the Court's decisions may be developed. �ti March-April 1995 Volume 78, Number 5 judicature 249 

The Clerk Connection: Appearances Before the Supreme Court by Former Law Clerks

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The Clerk Connection: Appearances Before the Supreme Court by Former Law Clerks

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