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 davidlat@substack.com, and you can register to receive updates on this signup page.
August is a quiet month in many places, including the legal profession. The Supreme Court is still out of session, the lower courts are relatively quiet (because many judges are on vacation), it’s not a great time for closing deals, and law schools haven’t resumed classes yet. I’m not expecting much in the way of big news (although there will be some exceptions; see, e.g., Governor Andrew Cuomo).
So I’m going to take this time to write about a few subjects that I see as “evergreen,” i.e., not particularly time-sensitive, but still very interesting. One of them is a longstanding obsession of mine: Supreme Court clerk hiring.
A Supreme Court clerkship is the most prestigious credential that a young lawyer can obtain. The justices are extremely selective in their clerk hiring, picking some of the brightest young legal minds to assist them in their judicial duties. There’s a reason why law firms pay signing bonuses of up to $450,000 (on top of six-figure base salaries) to bring aboard former SCOTUS clerks. And it’s a credential that opens doors and fast-tracks legal careers for years after the clerkship concludes. It’s no coincidence that two-thirds of the current members of the Supreme Court clerked for the Court themselves.
Being a SCOTUS clerk is such a high honor that it reflects well on both law schools and lower-court judges to have sent or “fed” clerks to the Court. This explains why law schools love to tout their success at placing alumni at One First Street, and why lower-court judges with strong track records of minting SCOTUS clerks are called “feeder judges.” Being known as a feeder judge is valuable because it confers considerable prestige upon a judge, helping that judge attract the very best clerks.
The justices act independently in their clerk hiring, but interesting patterns do emerge. Later this month, I’m going to release rankings of the law schools, feeder judges, and lower courts that have produced the most SCOTUS clerks over the past five Terms and the past ten Terms of the Court. I’ll start with October Term 2021, the Term that will officially get underway this fall, and work backwards. I’ll also include the gender breakdowns for the past ten classes of SCOTUS clerks.
I will share the overall rankings in these pages. For paying subscribers to Original Jurisdiction, I will provide spreadsheets that will offer a much more detailed look at the numbers, as well as different ways of playing with the data, using sortable columns. If you think that sounds interesting, please feel free to sign up now for a paid subscription.1
Before doing that, though, I need to finish up my analysis of the October Term 2021 class of clerks. In a normal year, I’d say that these clerks are already “in the building”—but because I’m not sure of whether folks are working out of One First Street these days, I’ll just say that these clerks have already started working, wherever they might be. (The Court has also not yet announced whether it will return to in-person oral arguments when it resumes on the first Monday in October; a few weeks ago, I would have bet that they would, but the recent rise in Covid-19 cases driven by the Delta variant has made this more uncertain.) [UPDATE (4:42 p.m.): All or almost all of the OT 2021 clerks are working out of the building.]
Let’s start with demographics, then move on to more fun stuff.
1. Gender. The class contains 37 clerks—four for each active justice, plus one for retired Justice Anthony M. Kennedy (who will help him out with any projects and also work in the chambers of an active justice; this Term, the AMK clerk will work in the chambers of Justice Amy Coney Barrett). Of the 37 clerks, 19 are men and 18 are women, making for an almost even gender split, 51 percent to 49 percent.
This actually represents significant improvement in terms of gender balance. In 2017, Tony Mauro of the National Law Journal conducted a detailed study of Supreme Court clerk demographics. For the first twelve years of the Roberts Court (2005-2017), roughly two-thirds of SCOTUS clerks were male. For the five most recent Terms (2017-2021), my own calculations show that the average has been 56 percent male, 44 percent female.
Upon information and belief (please correct me if I’m wrong), a SCOTUS clerk class that’s 49 percent women is the class with the second-highest percentage of women. The only class that I know with a higher number is the October Term 2018 class, the first (and to my knowledge only) SCOTUS clerk class that was majority female—specifically, 51 percent.2
2. Race/ethnicity. Tony Mauro of the National Law Journal, who has been tracking SCOTUS clerk diversity (or lack thereof) for decades, had this to say about the OT 2021 clerk class:
The Supreme Court does not release any information about the race or ethnicity of law clerks. As a result, it is a risky business to guess the demographics of clerks, an issue that has been a sore spot for decades. But it appears that roughly 27 of the 37 incoming clerks are white, three are of Asian descent, one is Hispanic, and the remaining six don’t have an easily discernible online “paper trail.” We would be grateful if readers could contact us to fill in blanks and correct errors.
I’d like to echo Mauro’s request: if you believe his count is off, please drop me a line. Also, I plan to track racial and ethnic diversity among SCOTUS clerks going forward, and I’d also like to try and get this information for the past four Terms—OT 2021 through OT 2018 (since Mauro and the NLJ tracked this information through and including OT 2017). If you have information to share—e.g., a clerk from the past four Terms who is diverse but whose name or other information might not suggest that—please email me (davidlat@substack.com).
3. Feeder schools. This Term, a dozen law schools sent a total of 37 graduates to the Court, up from just seven schools in October Term 2020. Here’s the ranking, with the number of clerks noted parenthetically:
Yale (12)
Chicago (9)
Harvard (5)
Stanford (3)
BYU (1)
Duke (1)
GW (1)
Michigan (1)
Notre Dame (1)
Penn (1)
UCLA (1)
UVA (1)
Yale, the usual leader at minting SCOTUS clerks in recent years, was #1, but Chicago took the #2 spot, beating out Harvard, the usual runner-up. Chicago sent nine clerks, an all-time record for the school for one Term, and those nine clerks went to nine different justices (eight of the active justices plus Justice Kennedy).
4. Feeder judges. Forty-six different judges sent clerks to the Court this Term, up from 39 in OT 2020. Here are the feeder judges with more than one clerk at the Court for OT 2020, with the number of clerks noted parenthetically:
Griffith (4)
Sutton (4)
Katsas (3)
Thapar (3)
Barrett (2)
Calabresi (2)
E. Jones (2)
Larsen (2)
Kethledge (2)
O’Scannlain (2)
W. Pryor (2)
Sykes (2)
Friedrich (D.D.C.) (2)
5. Ms. Irrelevant. As longtime readers of Supreme Court Clerk Hiring Watch know, each year I prepare a special profile of the last clerk whose hiring I learn about. It’s the SCOTUS clerk hiring version of the NFL’s Mr. Irrelevant (although unlike the NFL draft, where the last pick is presumably not as desirable a player as the earlier picks, there’s no particular significance to being the last clerk whose hiring I find out about).
This Term, just like last Term, we are dealing with a Ms. Irrelevant—Katherine Munyan (Yale 2017 / Rakoff (S.D.N.Y.) / Katzmann), clerking for Justice Sotomayor. Here’s a little background and some fun facts about Munyan.
Katie Munyan graduated from Yale College in 2011, with a B.A. in Political Science & English (magna cum laude and Phi Beta Kappa), and from Yale Law School in 2017. After graduating from YLS, she worked for a short time at Debevoise & Plimpton in New York before clerking for Judge Jed S. Rakoff (S.D.N.Y.) and the late Judge Robert A. Katzmann (2d Cir.), the feeder judge tag-team that produced numerous SCOTUS clerks over the years.
She then worked in the appellate and Supreme Court practice at Orrick in New York. I asked Orrick partner Bob Loeb, who worked with Munyan, for comment on her, and he was brief and to the point: “She is wonderful.”
Two Yale degrees, two top clerkships, two leading law firms: on paper, Katie Munyan looks like your typical, high-flying legal eagle, exactly the type to land at One First Street. But I wonder if there might be more to her than meets the eye.
Here’s an intriguing tidbit about Munyan: she took first place in the Yale Law Library Short Story Contest in 2015, 2016, and 2017—every year that she was at YLS. Might this brilliant young lawyer also be an inspiring novelist? Here’s hoping she turns her year at One First Street into a dishy roman à clef!3
6. Miscellaneous observations. Here are some random comments about this year’s class of SCOTUS clerks, on top of the ones previously shared by Tony Mauro—e.g., the fact that Elizabeth Nielson, clerking for retired Justice Kennedy, is the daughter of Judge Howard Nielson Jr. (D. Utah.), who also clerked for Justice Kennedy.
Speaking of family ties, two of Justice Thomas’s four clerks are married to former clerks of his. Scott Proctor is married to Haley Proctor, who clerked for CT in OT 2014, and Steve Lindsay is married to Caroline Lindsay, who clerked for CT in 2019. But lest you think that Lindsay and Proctor just got hired because Justice Thomas met them through their wives and found them charming, note their credentials: Lindsay is a YLS grad who clerked for Judge Griffith and served as a Bristow Fellow, and Proctor is an HLS grad who clerked for Judge Sutton. (Can you say “assortative mating”?) [UPDATE (4:17 p.m.): This bullet was corrected because I mixed up the spouses.]
Now that Scott Proctor is clerking at the Supreme Court, every clerk in Judge Sutton’s 2017-2018 clerk class made it to SCOTUS. The other clerks were Zaki Anwar (Roberts / OT 2019), Trevor Ezell (Gorsuch / OT 2020), and Jimmy Xi (Kavanaugh / OT 2019).
Back in 2005, I dubbed the Justice Department’s Office of Legal Counsel (OLC) the “Finishing School for the Elect,” given its propensity for producing SCOTUS clerks. As I wrote at Underneath Their Robes, “If you don't land a Supreme Court clerkship that immediately follows your feeder judge clerkship, cool your heels at the OLC, then reapply to the Court. Success is practically guaranteed!” The trend has continued to the present day; Zach Tyree (Barrett / OT 2021) and David Suska (Gorsuch / OT 2022) are both OLC alums.
Please feel free to mention other OLC alumni at SCOTUS, or fun facts or interesting observations of your own about this year’s clerk class, in the comments.
For paid subscribers to Original Jurisdiction, I’ve provided below the complete list of Supreme Court law clerks for October Term 2021, as well as law clerk hires for future Terms. Upon information and belief, several of the justices have completed their hiring for OT 2022 and perhaps even OT 2023, but I just haven’t found out about all the hires yet.
Perhaps you can help? If you have hiring news that I have not yet reported (or any corrections to the info appearing below), please reach out by email (davidlat@substack.com) or text (917-397-2751). Please make sure to include the words “SCOTUS Clerk Hiring” in your email or text message, perhaps as the subject line of your email or the first words of your text, to help me locate these tips in my inbox. Thanks!
