The Revolving Door in Judicial Politics: Former Clerks and Agenda Setting on the U.S. Supreme Court

• Author: Huchen Liu,Jonathan P. Kastellec
• DOI: http://doi.org/10.1177/1532673X211070806
• Published date: 01 January 2023
• Date: 01 January 2023
• Subject Matter: Articles

Article

American Politics Research

2023, Vol. 51(1) 3–22

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DOI: 10.1177/1532673X211070806

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The Revolving Door in Judicial Politics:

Former Clerks and Agenda Setting on the

U.S. Supreme Court

Huchen Liu

1

and Jonathan P. Kastellec

2



Abstract

We examine the role of former clerks to Supreme Court justices on the Court’s agenda setting process. We f‌ind that when a

former clerk is the attorney on either a cert petition or an amicus brief, the Court is more likely to hear a case, compared to

advocacy by a non-former clerk. To help explain these patterns, we draw on the broader literature on “revolving door”politics.

We argue that the most plausible mechanisms are either that former clerks are more effective adv ocates or that their presence

in a case signals its importance to the Court. Alternatively, former clerks may select into cases that the Court is likely to grant.

While we cannot def‌initively disentangle these competing mechanisms, the strong patterns in the data suggest that the im-

portance of the revolving door in judicial politics extends broadly into the domain of agenda setting and is thus worthy of further

investigation.

Keywords

Supreme Court, clerks, cert, amicus briefs, revolving door

A key institutional feature of the modern-day United States

Supreme Court is that the number of cases the Court could

hear and the number of cases the Court does hear have moved

in strikingly opposite directions over the last few decades.

Due in part to the growth in general of the federal government

and the creation of federally judicially enforceable indi vidual

rights, the number of cases in which litigants have sought

review by the Court—that is, the Court’s docket—has ex-

ploded over the last 75 years. As seen in Figure 1, the number

of cases on the Court’s docket has roughly quintupled since

1950, going from around 1300 cases that year to about 7500

in 2015, following a peak of about 10,000 in 2006.

1

Because the Supreme Court has nearly complete discretion

over the cases it hears, the size of its docket is the upper bound

on the number of actual decisions on the merits it makes. That

number is determined by the number of certiorari (or “cert”)

petitions the Court grants in a given term. In stark contrast to

the Court’s rising docket numbers, the number of cert peti-

tions granted by the Court has declined dramatically. This can

be seen in Figure 2, which depicts the number of cert petitions

granted between 1970 and 2015. The graphs make clear the

steep decline in grants; the Court now gives full consideration

to only about 80 cases a year, or about one percent of the

number of cases that enter the docket each year.

2

The diverging paths of the Court’s docket and the number

of cases it “decides to decide,”to borrow H.W. Perry’s(1991)

famous phrase, are of course well known among those who

study the Supreme Court. But a key implication of this di-

vergence is often under-appreciated. If we want to look for

external inf‌luences on the decision making of the justices, the

starting point is not necessarily the set of cases given full

consideration, including oral argument, by the Court.

3

Rather,

the place to look for suchinf‌luence is the set of cases the Court

could decide to weigh in, simply because statistically it is so

rare that a case on the docket will be formally decided by the

Court (that is, decided in a manner other than a cert denial).

In this paper, we examine a particular avenue for inf‌lu-

encing the Court’s agenda: the role of former law clerks for

the justices. The potential inf‌luence of former clerks has

received scholarly attention with respect to their effectiveness

at oral arguments (Black & Owens, 2020;McGuire, 2000).

And more generally, scholars have recognized the importance

of clerks for the ability of justices to manage the f‌low of cases

coming to the Court and to help them draft opinions (Peppers,

2006;Ward & Weiden, 2006); this inf‌luence, of course, can

only arise during a clerk’s short time (usually one term)

1

University of Michigan, Ann Arbor, MI

2

Princeton University, Princeton, NJ, USA

Corresponding Author:

Jonathan P. Kastellec, Princeton University, 39 Corwin Hall, Princeton, NJ

08544, USA.

Email: jkastell@princeton.edu

working for a single justice. But, to the best of our knowl-

edge, no academic study has yet examined whether former

clerks exert any inf‌luence at the agenda setting stage.

4

In this

paper, we do exactly that.

In particular, we combine existing and original data to

examine whether the presence of a former clerk on a case is

associated with a higher likelihood of the Court granting cert.

Our theoretical expectations here are drawn from the broader

literature on “revolving door”politics, in which individuals

move from government jobs into lobbying. In particular, we

focus on two pathways through which former clerk inf‌luence

might play out in the cert process. The f‌irst is by direct

representation; that is, when a former clerk represents a party

in a suit and directly f‌iles a cert petition seeking Supreme

Court review of the case. The second is by indirect repre-

sentation; here the former clerk does not directly represent a

party to the case, but still becomes involved by authoring an

amicus brief that urges the Court to take the case. In this form

of indirect representation, attorneys often assist organized

interests that lobby the Court as amici curiae. With our newly

collected data, we are able to examine former clerks’potential

advantage in both capacities during the cert process.

For both types of representation, we f‌ind that the presence

of a former clerk in the case is associated with a substantially

higher likelihood of the Court granting cert compared to

advocacy by a non-former clerk, ceteris paribus. In addition,

the estimated magnitude of these differences is quite sub-

stantial. For cert petitions, our best estimate is that the

Figure 1. The Supreme Court’s Caseload, 1878–2017. The graph depicts the total number of cases on the Court’s docket, for each term.

Figure 2. Cert Petitions Granted by the Supreme Court per term, 1970–2017.

4American Politics Research 51(1)