Prior clerkship experience of Supreme Court clerks has changed dramatically in the last 10 and 20 years
David Lat’s tireless efforts to chronicle the hiring of Supreme Court clerks prompted me to look at a trend that’s developed in recent years. It increasingly appears that multiple clerkships are a prerequisite to securing a Supreme Court clerkship. So I looked at the data for this October Term 2023 class, along with comparisons to the credentials of the OT2013 and OT2003 classes. The results were pretty dramatic. (I looked only at the 36 clerks of the active justices, and the 35 when Chief Justice Rehnquist served on the Court and only hired three clerks instead of the usual four.)
For OT2003, just twenty years ago, 33 clerks came off of one previous court of appeals clerkship, and just two others had multiple clerkships (one of which was not on the federal court of appeals). In 2013, the number off a single prior court of appeals clerkship had dropped to 25. Another nine had two prior clerkships (one of which was not court of appeals), and two more had newer development of two separate court of appeals clerkships. Today, for October Term 2023, just seven of the 36 clerks came from one prior court of appeals clerkship. Fourteen had two prior clerkships, at least one of which was not on the federal court of appeals. And 11 had two prior court of appeals clerkships, and four with the novel development of three prior clerkships.
I’ve lamented that the hoops to jump through for a law school teaching position often involve a series of short-term stints and moves over a course of a few short years. Likewise, I’m not sure this is a particularly welcome development. Admittedly, Supreme Court clerks are a fraction of career outcomes. But many more, I think, are likewise chasing similar credentials of serial clerkships even if they do not get a Supreme Court clerkship in the end. I am not sure that it redounds to the benefit of law students, who as fourth or fifth year associates have much higher billing rates and expectations, but much less practical experience in the actual practice of law. For judges, I am sure that clerks with experience are beneficial, but in previous eras that role may have been given to a career clerk. I don’t know what the longer-term ramifications are, but it’s a trend I’m watching.