My February 2020 thought experiment was about the possible restructuring of the federal judicial clerkship programs by standardizing the hiring process and mandating minimum qualifications. I also converted term clerks into career clerks. This post generated some controversy and, as I anticipated it, stimulated discussions about some of the flaws in federal clerkships.
Now, let me offer another experiment. This one is more modest, but much more ambitious. Congress should eliminate Supreme Court law- clerks. After pondering the matter for some time I came to the conclusion that SCOTUS clerkships cause far too much distortion in the legal market and should not be allowed by the federal government.
ErstSupreme Court clerkships have some of the best brass rings in the entire world. The so-called elect, and the pay bonuses that amount to nearly $500,000.000 are a source of contention between law firms. This outrageous amount is paid by law firms even though ex-clerks cannot practice before the Supreme Court for three consecutive years. The value of these clerks is more than just dollars and cents. The selection process for these clerks is complicated, particularly at elite schools. You need only look at the recent scandals that occurred at Yale Law School. Students are being controlled by professors through the requirement for recommendations. The administration also threatened students with clerkship opportunities. This problem doesn’t just affect law schools. The so-called “feeder judge” fights for the few Supreme Court clerks. With their connections to feeder judges, professors can exert considerable pressure on 1Ls and 2-Ls in order to be hired by these feeder judges. Feeder judges are able to exercise tremendous power over clerks. Clerks can even conceal misconduct in order to avoid retaliation. This dynamic is evident in the clerk machines used by Judge Kozinski and Reinhardt. Additional evidence of this dynamic is the elaborate screening process that the Justices use to screen their clerks. There are many biases and favoritism. Every step is a battleground for students. They are forced to comply with expectations or risk losing the coveted brass ring. Club members are open to students who have made it past the cut. Students who fail to make the cut are permanently expelled from the club.
SecondSupreme Court clerks could have an excessive amount of power. It’s difficult to determine how powerful Supreme Court clerks are. It is difficult to estimate the power of Supreme Court clerks. This depends on each Justice’s age. Particularly, Justices will become more dependent on their law clerks as they age and lose their ability to think for themselves. For how long did Justice Douglas rely on his law clerks to keep him upright? My proposal would have the unexpected benefit of encouraging declining Justices to retire earlier. They will be required to retire if they are unable to keep up with their duties. It is not necessary to place term limitations on Justices. They can simply be forced to perform their own work.
TroisièmeForcing the Justices into doing their work is going to make it more difficult for them to participate in extra-curricular activities. It is tiring to see the endless list of forgotten books, which people claim they read only because Justices wrote them. This happens especially when there are exorbitant advance payments. Justices often go on extravagant book tours. The cult of personality, which Justice Ginsburg suffered from, is a result. Justices are forced to give up their foundation. You are elite if you socialize with elites. The Justices will be less likely to lose what is most important if they’re confined in their chambers reading cert petitions. If Justices want to take part in extracurricular activities they are able to retire.
FourthIt would be more common for Justices to work together if they were forced to complete their own work without assistance from clerks. This type of giving and taking is something I consider a positive. Collaboration will result in less polarized opinions and clearer decisions. Moreover, opinions without law clerks will be more concise and direct. It is best to have less flourish. A Justice can also seek out other work if the others eight are too much.
FifthThe cert pool would be eliminated if law clerks were removed. It would be up to the Justices to go through all petitions and read them on their own without relying on any memos from a 20-something clerk. There are no summer cases. The Justices would be able to spend their time reading cert petitions during the conference. It’s not quite as enjoyable as Salzburg but it’s more consistent with their job. You can retire if that burden becomes too heavy.
My proposal for Court reform is the fastest way I know to lower the Court’s prestige and power. It would also be constitutional. They don’t need to all be fired at once. They can be eliminated gradually. This year, four. Three in the following year. Two in the following year. Two clerks for the next few terms. Then zero. Maybe the Court can hire a room of copy-editors and cite checkers–non-attorney career employees who can proofread the work, but not make substantive recommendations. Let’s watch how the Justices perform on their own. John Marshall did not need to be aided by a lawyer. John Roberts does too.
The Supreme Court was not a place I ever worked as a clerk. While I have no doubt that I would be hired in the future, I made a decision early on not to apply for such a position. I also decided I wasn’t going to go through all of the hassles required to do so. It is not something I enjoy. I didn’t want to kiss the rings. I had the good fortune to have a job I loved and was not interested in quitting it.
People will again dislike my writings. Many critics may have served as clerks on this court, which I anticipate. Their mentees may be able to gain prestige. They may also benefit in other ways from the generosity of the elect. These inevitable criticisms are further evidence of my point that those who will benefit most from the SCOTUS clerkships would be the best to abandon the current system.