Minority Attorneys Take a Closer Look at the SCOTUS Clerk Diversity Dearth

Tony Mauro, National Law Journal, February 1, 2018

U.S. Supreme Court justices should step up and state publicly that they want greater diversity among their law clerks, said Howard University School of Law Dean Danielle Holley-Walker.

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NLJ research found that since 2005—when the Roberts court began—85 percent of all law clerks have been white. Only 20 of the 487 clerks hired by justices were African-American, and nine were Hispanic. Twice as many men as women gain entry, even though as of last year, more than half of all law students are female.

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But this term, of the 36 clerks hired by sitting justices this term, only one is African-American, two are Hispanic and three are Asian-Americans, based on the NLJ research.

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Crystal Nix-Hines, a partner at Quinn EmanuelUrquhart & Sullivan, Harvard Law School alum and a former clerk for Justice Thurgood Marshall, agreed.

“I think there’s a broader systemic problem. It starts in law school or perhaps even earlier,” said Nix-Hines, who is African-American. “If you’re not at a great law school, and you’re not on the law review, or at the top of your class, or known to a feeder professor or judge, the chances of getting a Supreme Court clerkship are pretty slim.”

The low numbers span the court’s ideological spectrum. Since Chief Justice John Roberts Jr. joined the court in 2005, just 8 percent of the law clerks he’s hired have been racial or ethnic minorities. Only 12 percent of the clerks hired by Justice Ruth Bader Ginsburg and Justice Clarence Thomas since 2005 were minorities. Ginsburg has hired only one African-American clerk since she joined the high court in 1993, and the same goes for Justice Samuel Alito Jr., who became a justice in 2006.

By contrast, more than 30 percent of Justice Sonia Sotomayor’s clerks have been nonwhite, making her chambers the most diverse among those justices who have been on the court for more than a year. (Justice Neil Gorsuch has hired seven clerks so far over two terms, three of whom are nonwhite, for a total of 43 percent.)

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Since 2005, Breyer, Ginsburg, Elena Kagan and Anthony Kennedy have hired 10 percent or fewer of their clerks from law schools outside the U.S. News & World Report Top 10. The late Justice Antonin Scalia hired just a single graduate from a school outside the top 10 during that period.

Harvard and Yale law schools have tightened their grip on the clerk “market,” providing half of the court’s law clerks since 2005, compared to 40 percent in 1998.

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In terms of gender diversity, Ginsburg and Breyer have hired men and women in equal numbers. In contrast, other chambers continue to be male-dominated. For instance, Kennedy, has hired six times as many men as women law clerks since 2005. And Gorsuch, in his second term, has hired just one female law clerk.

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