Supreme Court Clerk Hiring Watch: The Latest News
And thoughts from former SCOTUS clerks on how the Dobbs leak might affect future clerks.
Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at email@example.com, and you can subscribe by clicking on the button below.
Despite the extensive commentary on Monday night’s leak of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization, we actually haven’t learned any new facts since Tuesday morning, when the Supreme Court issued a statement that confirmed the authenticity of the draft and announced an investigation into the leak. Everything else has been speculation and conjecture—much of it interesting and thoughtful, but speculation and conjecture all the same.
As Chief Justice John Roberts emphasized in his Tuesday statement, the draft opinion by Justice Samuel Alito “does not represent a decision by the Court or the final position of any member on the issues in the case.” As everyone from Planned Parenthood to the March for Life has reminded us, the leaked draft decided nothing, which is why we must wait for the Court’s final ruling. So I will refrain from analyzing the underlying issues in the case or speculating about the United States post-Roe v. Wade until we have an official opinion. (In fact, many speculate that the draft opinion was leaked precisely because the outcome of Dobbs remains uncertain and the leaker was trying to affect it.)
The leak did remind us of how much trust the Supreme Court places in the people who work there—especially the 37 law clerks who are currently at 1 First Street. We don’t know who leaked the Dobbs draft, but based on what I’ve read (and I’ve spent much of this week reading), the most widely held view is that it was a clerk. In a piece for NBC News, Dareh Gregorian quoted four former SCOTUS clerks from across the ideological spectrum, from the very conservative Sen. Ted Cruz (R-Tex.) to the very progressive Professor Amy Kapczynski, and all four agreed that it was probably a clerk, even though they disagreed on the clerk’s ideology and motive.
Two of the clerks quoted by Gregorian, Professor Brian Fitzpatrick and Professor Carolyn Shapiro, expressed concern that the leak will sow distrust among justices and clerks, harming the justice-clerk relationship and impairing the work of the Court. I share their concern. It’s quite possible that as a result of this leak, future SCOTUS clerks won’t be given the same amount of trust and responsibility that they’ve enjoyed for decades—because for decades that trust wasn’t violated.
“I could imagine some operational changes in how drafts in highly controversial cases circulate,” Professor Shapiro said. Similarly, Professor Fitzpatrick observed, “There were times during Bush v. Gore the justices communicated just among themselves, without the communication being shared with the law clerks. I could see a world like that repeating itself.”
Of course, this is all speculation as well. Let’s turn to facts: the latest Supreme Court law clerk hires, for October Term 2022, October Term 2023, and yes, even October Term 2024.