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Supreme Court of the United States

Supreme Court clerks are overwhelmingly white and male. Just like 20 years ago.

These powerful positions are tickets to top-tier legal careers. I didn't find many minorities or women in my first analysis. They're still rare today.

Tony Mauro
Opinion columnist
Law clerks at the Supreme Court on Feb. 19, 2016.

Nearly 20 years ago, USA TODAY reported on a first-ever study of the powerful young law clerks who are hired by the U.S. Supreme Court to help justices do their work — work that affects the lives of all Americans.

The research showed that those prestigious one-year clerkships, a golden ticket to a top-tier legal career, were going overwhelmingly to white males. Fewer than 2% were African-Americans, 1% were Hispanic, and only a quarter were women.

The stories, which occupied more space in USA TODAY than any other topic in a single day’s edition until then, caused a stir. Civil rights leaders protested and got arrested on the steps of the Supreme Court, and justices were routinely asked by members of Congress why they have not hired more minorities.

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I wrote those stories as USA TODAY’s Supreme Court correspondent, and thought I’d let readers know that I recently updated the research in a series of stories for The National Law Journal, where I currently cover the Supreme Court. You may be surprised to learn — I certainly was — that in the 20 years since those stories appeared, little progress has been made.

We found that since 2005, 85% of all Supreme Court law clerks have been white. The percentage of African-Americans and Hispanics has increased at a glacial pace. Women comprise a third of the clerks instead of a fourth, even though more than half of law students now are female.

And the lack of diversity runs across the spectrum of justices. Though half of liberal Justice Ruth Bader Ginsburg’s clerks have been women, she has hired only one black law clerk since joining the court in 1993. Only 8% of Chief Justice Roberts’ clerks have been racial or ethnic minorities. Also note: Harvard and Yale law schools have increased their dominance, providing half of the court’s law clerks since 2005, compared to 40 percent in 1998.

You might wonder why all this matters. They are, after all, clerks, not justices. But in reality, they are crucial to the functioning of the nation’s highest court. They help shape the court’s docket and draft its decisions. Minorities are simply not playing these important roles to any large extent.

Justices have said how important the storytelling of the late Thurgood Marshall, the first black justice on the court, was in informing their thinking about race. Having more minority law clerks would do the same. An example: Justices rule often on issues relating to Native Americans, but the court has never had a clerk who was known to be a Native American.

Qualified minorities are also missing out on the opportunities that open to clerks after their year at the court. In addition to hiring bonuses of $350,000 offered by big law firms, law clerks have growing prestige elsewhere — four current justices and three U.S. senators were once law clerks, as were notables like Laura Ingraham of Fox News.

So why do the justices hire so few minority clerks? I asked all nine justices to discuss the issue and to verify our research, because the court does not maintain demographic data about its clerks, unlike lower federal courts. All nine declined. (Twenty years ago, the justices were a little more helpful.)

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But even without their help, some of the reasons for the dearth of minority clerks are clear.

For one thing, top minority law students have many other options and may keep themselves out of the running. When I was researching the topic 20 years ago, several sources told me about an African-American Harvard student who would have made a great law clerk but “got away.” That student turned out to be Barack Obama, who turned down an appeals court clerkship offer that would have put him on the path to the Supreme Court. He had other plans.

Another factor: the “feeder” judges and law professors who recommend candidates to the justices are mainly white males, some of whom don’t look outside clubby and well-worn pathways for recruiting clerks.

But most of all, it seems that some justices are not going out of their way to recruit minorities — though no one we talked to accused the justices of racial bias. Andrew Crespo, the first Latino editor of the Harvard Law Review, and a former clerk, said the justices would do well to speak out publicly on the diversity issue. “When the justices speak on issues like this,” Crespo said, “their words carry great weight.”

Tony Mauro, a member of USA TODAY's Board of Contributors, is Supreme Court correspondent for The National Law Journal and the Supreme Court Brief newsletter.

 

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