TRENDS: The Influence of Personalized Knowledge at the Supreme Court: How (Some) Former Law Clerks Have the Inside Track

• Date: 01 December 2021
• DOI: 10.1177/1065912920948138
• Published date: 01 December 2021
• Subject Matter: Articles

2021, Vol. 74(4) 795 –807

https://doi.org/10.1177/1065912920948138

Political Research Quarterly

© 2020 University of Utah

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DOI: 10.1177/1065912920948138

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Supreme Court law clerks hit the jackpot—in more ways

than one—when they departed the Court at the close of the

2018 term. Most of them entered private practice, where

they collected signing bonuses of $400,000 (Mauro 2018).

These bonuses, combined with their hefty salaries,

allowed former clerks to earn upward of three-quarters of

a million dollars in their first year away from the Court

(Ward, Dwyer, and Gill 2014). Law firms throw money at

former clerks for the same reason companies, unions, and

organized interests hire former government officials as

lobbyists: they expect these insiders to influence their pre-

vious employers. “High powered firms perceive that the

clerk experience can give their clients a distinct advantage

before the nation’s highest court . . .” (O’Connor and

Hermann 1995, 247). As one partner at a large firm com-

mented, “We have found [that hiring former clerks is] a

terrific investment for us . . . They have this unique view

of how judges think, of how the justices interact” (Kendall

2012, 2). Or so the story goes.

Do former clerks actually influence the justices? If so,

why? Despite a marked increase in former clerks who

enter private practice—and Supreme Court practice in

particular—scholarship is surprisingly silent on whether

and why such influence exists. In what follows, we draw

from literature on revolving door lobbying and employ

matching analyses to examine whether and why former

Supreme Court law clerks win the justices’ votes.

Our analysis shows that former clerks provide a sig-

nificant but highly targeted advantage in terms of captur-

ing justices’ votes. More specifically, an attorney who

formerly clerked for a justice is 16 percent more likely to

capture that individual justice’s vote than an otherwise

identical attorney who never clerked. This former clerk,

however, has no significant advantage when trying to

sway the votes of other justices. What this means is that

former clerk influence is real, but targeted, and that for-

mer clerk success largely derives from the personalized

information they know about their justices.

These results have a number of important implica-

tions. Former clerks regularly litigate at the Court. Since

the start of the Roberts Court era, fully 75 percent of all

argued cases have observed at least one former law clerk

appear. Their role, in other words, is pervasive. Moreover,

the fact that inside information leads former law clerks to

capture a justice’s vote seems normatively problematic.

Greater legal acumen and stronger legal arguments

should lead to success. The ability to “see the man behind

948138PRQXXX10.1177/1065912920948138Political Research QuarterlyBlack and Owens

research-article2020

1Michigan State University, East Lansing, USA

2University of Wisconsin–Madison, USA

Corresponding Author:

Ryan C. Black, Michigan State University, 303 South Kedzie Hall, East

Lansing, MI 48824, USA.

Email: rcblack@msu.edu

The Influence of Personalized

Knowledge

at

the

Supreme

Court:

How

(Some)

Former Law Clerks Have the

Inside

Track

Ryan C. Black1 and Ryan J. Owens2

Abstract

When arguing at the U.S. Supreme Court, former High Court law clerks enjoy significant influence over their former

justices. Our analysis of forty years of judicial votes reveals that an attorney who formerly clerked for a justice is 16

percent more likely to capture that justice’s vote than an otherwise identical attorney who never clerked. What is

more, an attorney who formerly clerked for a justice is 14 to 16 percent more likely to capture that justice’s vote than

an otherwise identical attorney who previously clerked for a different justice. Former clerk influence is substantial,

targeted, and appears to come from clerks’ personalized information about their justices. These results answer an

important empirical question about the role of attorneys while raising normative concerns over fairness in litigation.

Keywords

Supreme Court, judicial politics, attorneys, law clerks, lobbying, matching

Article

TRENDS: