The Washington Post just had a big article on October 30 about racial and gender diversity among Supreme Court clerks, and followed it up with a smaller piece on November 1 about elite law-school hiring patterns for Supreme Court clerks. Since that second article quoted me on elite law-school advantage (and I use “elite” as a shorthand to refer to Harvard, Yale, and more generally any law school in U.S. News’s Top 14 (T14)), I thought I would elaborate on my views, because one’s full views are invariably more complex than what you get from reading a three-sentence soundbite.

When talking about clerk hiring, a few questions might be interesting: (1) Is there an elite-school hiring pattern for federal clerks at the highest level? (2) If yes, is that elite-school hiring pattern justifiable? (3) If the answer to (1) is yes, can law students at non-elite schools still get good clerkships? (4) If the answers to (1) and (2) are yes, and if I’m a professor at a non-elite school, am I a trustworthy law clerk advisor and recommender? Stay tuned for my four answers: yes, yes, yes, and yes! Specifically:

Yes, for U.S. Supreme Court clerks; much less so for other clerkships.
Yes, it’s a not unreasonable preference for U.S. Supreme Court Justices who are busy and have to make decisions based on very incomplete information; I might well do the same if I were a Supreme Court Justice.
Yes: even on the U.S. Supreme Court, students from non-elite law schools can get clerkships, and there are so many positions at courts that are not the U.S. Supreme Court that many students from good-but-not-elite law schools can get excellent clerkships.
Yes: what a hypothetical me would do in a hypothetical situation if I had a different set of priorities has no bearing, either logically or in practice, on my willingness to help you, my actual students in the real world, get excellent clerkships.

1. Is there an elite-school hiring pattern for Supreme Court clerks?

The short answer: Yes. The longer answer: Obviously yes, at the U.S. Supreme Court level. At the risk of belaboring the obvious, let’s look at some numbers, helpfully facilitated by Wikipedia’s Supreme Court law clerks pages (which also contain the identities of some future clerks, to the extent these are known to Wikipedia editors):

Chief Justice Roberts: 74 clerks since 2005 — 47 are from Harvard/Yale; all but 5 are from the T14.
Justice Kavanaugh: 28 clerks since 2018 — 17 are from Harvard/Yale; all but 2 are from the T14.
Justice Jackson: too soon to tell much, but her first 4 clerks are from Michigan, Stanford, and Harvard (i.e., none from outside the T14).
Justice Sotomayor: 61 clerks since 2009 — 30 are from Harvard/Yale; all but 5 are from the T14.
Justice Kagan: 58 clerks since 2010 — 40 are from Harvard/Yale; none are from outside the T14.
Justice Barrett: 14 clerks since 2020 — 2 are from Harvard (none from Yale); all but 3 are from the T14.
Justice Alito: 77 clerks since 2006 — 36 are from Harvard/Yale; all but 14 are from the T14.
Justice Gorsuch: 37 clerks since 2017 — 13 are from Harvard/Yale; all but 4 are from the T14.
Justice Thomas: 139 clerks since 1991 — 46 are from Harvard/Yale; all but 30 are from the T14.

The big outliers are Thomas and Alito, each of whom have hired 20% of their law clerks from outside the T14, and (with much less data) Barrett and Gorsuch. (It would be interesting to look into how much of this stems from those Justices’ own preferences and how much stems from the hiring patterns of the judges who have fed to those Justices. I’m sure someone out there has better informed views on this than I do.)

It would be an exaggeration to say that the Justices hire exclusively from elite law schools, but I think it’s clear that coming from Harvard or Yale (or the T14 more generally) gives you a big leg up, and that of two students with equivalent resumes and grades (or class ranks) and recommenders, the one from Harvard/Yale/T14 is much, much more likely to get hired than the one from a law school like mine, which (in the 13+ years I’ve been teaching here) has hovered between #19 and #30 in the U.S. News rankings. Indeed, I’ve had a number of prestigious federal judges (including, if I remember correctly, at least one Supreme Court Justice) admit to me very candidly that they have extremely strong top-law-school hiring preferences. It makes me sad because that disadvantages my own students, but it is what it is.

Of course this is much less true at the non-U.S. Supreme Court level. The reasons for this are pretty obvious. There are a lot more federal circuit judges (179 authorized positions, plus senior status judges, minus vacancies) and a lot lot more federal district judges (677 authorized), not to mention bankruptcy judges, magistrate judges, administrative law judges, etc., and the huge number of state Supreme Court and other state judges (not all of these have law clerks, but many do).

Many of those judges don’t have strong elite-school preferences, and in fact it’s not uncommon to find a judge who has a strong preference for students from the top local schools or who have a preference in practicing in the area, because they want to support the local bar. Many of those judges have loyalty to their own school or have had good past experiences with clerks from a particular school or have a good relationship with certain recommending professors. There are plenty of good clerkships to go around, especially if you’re from a high-quality (but not elite) school, and especially when you consider that not everyone from the elite schools even wants to be a law clerk.

2. Is this Supreme Court elite-school hiring pattern justifiable?

It’s fashionable to bash the U.S. News rankings. And you know what, that’s correct — the U.S. News rankings aren’t very good. For example, the ranking includes metrics like the reputation of the school among law professors, law school administrators, lawyers, and judges. That means that, hypothetically, Yale could go down the tubes today but still spend many years coasting on the reputation it would retain among people whose image of Yale was formed in earlier times. And this is even assuming people feel some need to answer these surveys honestly, rather than (in the case of law school professors or administrators) follow a rule like “rank my own school and my friends’ schools first, and rank my competitor schools last”. I’m sure there are plenty of other critiques, but I’m just listing the one that sticks out the most in my head.

So, if we’re convinced that U.S. News rankings are bad, should we ignore a law school’s ranking when hiring someone (whether for internships, clerkships, law firm jobs, or whatever)? I don’t think so. Suppose I announced a totally arbitrary ranking — literally randomly generated. If, for some reason, people believed the ranking (which they do, in the case of U.S. News), and if the ranking were stable enough over time (U.S. News’s T14 has been very stable), then the top students from the top colleges would tend to go to the top law schools, and the top law professors would gradually gravitate toward the top law schools. Over time, this arbitrary ranking would become reality — a self-fulfilling prophecy.

So if you look at an A student at Harvard and an A student at a lower-down school — more rigorously, let’s say that if you look at a Harvard student and a lower-down-school student with identical credentials on paper, including identical grades or class ranks, identical-sounding recommendations, etc. — the Harvard A student is likely to be a better clerkship hire.

What do I mean by “better”? I mean the standard characteristics that judges value in clerks: better able to read and understand a lot of complex law stuff, better able to write clearly and persuasively, etc. Obviously this doesn’t mean every law student at Harvard is better than every law student further down (including at Emory): I’ve seen Harvard students (as a student myself), and I’ve seen students at Georgetown, Houston, and Emory (as a professor), and I know that’s clearly not the case. Schools use various factors in their admission decisions that aren’t the same as what judges would value; a student’s ability may not be evident in their raw numbers or verifiable information, and might only show up when they actually start taking law classes at whatever school they got into; students make their decisions for many reasons other than rankings, like personal connections, geographic preference, or who gives them more money. As a result, the Harvard distribution and the Emory distribution overlap somewhat: I’ve had Emory students who would have been very competitive at Harvard, and I’ve known some Harvard students who weren’t very good.

Given all that, what should a hiring judge do, who is busy, has a huge pile of resumes to go through, and has very limited information? Is there enough of a correlation between law school ranking and likely clerkship quality that judges should use the law school ranking as a strong factor in their decisionmaking?

I think there is. A day of interviews can only tell you so much, and letters of recommendation are usually puffery. But one’s LSAT score has some correlation with one’s ability, and one’s undergrad college has some correlation with one’s ability, so getting into Harvard has some correlation with one’s ability. And if someone is an A student at Harvard, that tells you that they were near the top of their class in about two dozen classes where they were competing with their other Harvard-accepted peers; and if they were also on Law Review, that tells you that they beat out many of their Harvard-accepted peers on the Law Review competition.

There’s a lot of arbitrariness in any individual Harvard admission decision, and a lot of arbitrariness in how you do in any given law course, and a lot of arbitrariness in whether you make Law Review, but if someone has done all that against a pool of other Harvard Law students, that often tells you more than interviews and recommendations. Put all these correlations together, and you’re still left with a correlation; and using that correlation, together with the other personal factors you’ve observed about a candidate, to make decisions will save decision costs if you’re a busy person. Heck, if I were a Supreme Court Justice (which would never, ever happen), my hiring practices would probably be heavily weighted toward those top law schools. I don’t think it makes sense to pay much attention to small differences in rankings, especially if those differences are within the range of year-to-year variation (e.g., Harvard vs. Stanford, or Emory vs. GW), but big differences are probably meaningful.

Does that mean that Justices like Alito and Thomas are wrong in being as non-elite as they are? Not necessarily. First, 80% of their clerks are still from the T14. Next, different people can validly have different views about quality differences between different schools. Next, some people have strong views against some schools, which redounds at least slightly to the benefit of everyone else. (Witness the handful of judges who have recently decided not to hire from Yale — I actually do think it’s wrong to boycott Yale as retaliation for Yale’s bad free-speech policies, but if it benefits my students, I’ll take it.) Next (to repeat what I said above), some Justices have good relationships with certain professors and know from past experience that their recommendations are trustworthy. Next, some Justices may similarly trust their feeder judges, and the feeder judges may have some reason or other for trusting a particular non-elite candidate.

There are all sorts of reasons why, even with a thumb on the scale in favor of elite law schools, you would still hire some number of students from elsewhere. I’d like Supreme Court Justices to be even less elite-school-hiring than they currently are, because that would help my students. But I can hardly blame those Justices whose non-elite numbers are very low, and it’s quite possible that I would be one of those if you put me in that position — especially considering that there are only about three dozen Supreme Court clerkships available every year, and even if you only looked at graduating students who had been on Harvard Law Review and Yale Law Journal, you’d already have more than twice that number. (And remember that all these factors that would make a judge choose a student from an elite school play a much smaller role once you’re below the U.S. Supreme Court level.)

3. Given all this elite-school hiring bias, how can I possibly get a good clerkship if I’m from a non-elite school?

This question is probably at the top of the minds of many students, including my own, so here goes.

As you’ve already read above, the extreme elite-law-school hiring bias is a U.S. Supreme Court phenomenon. And even there, it’s totally feasible for non-elite-school students to get hired, especially by the Justices with the least elitist hiring practices. Once you get below the U.S. Supreme Court level — I’m repeating myself again — those elite-law-school biases tend to be much less relevant, and sometimes candidates from strong local schools can even have an advantage, whether it’s because the judge wants to support the local bar, has had good past experiences with clerks from those schools, or has a good relationship with particular recommenders.

So your chances might be good! And there are various things your law school can do to help you even further. We do a lot of these things (and by we, I primarily mean Emory’s excellent clerkship-and-public-service-focused administrators, though I also mean to partly include myself, who was chair of the clerkship committee for several years): We try to get students thinking about clerkship strategies starting early, so they can decide whether to do particular judicial internships/externships, network with faculty and other potential recommenders (e.g., by taking several courses with the same professor, being a research assistant or paper advisee, etc.). We do individualized clerkship advising (with journal students, moot court students, affinity groups, etc., but really with anyone who’s interested). We have various events where we bring in judges, current and former clerks, alumni, etc., to talk about their experiences. We help people connect with alumni or former clerks if they’re targeting a particular area. Because Emory has a student-edited bankruptcy journal, the students on that journal are particularly well-placed to go to bankruptcy judges, so we do a particular push on that front. We help students prepare their applications, and we help professors write letters of recommendation if they don’t know how to write good ones. I could go on, but the basic point is solid: despite elite-school hiring biases at the U.S. Supreme Court, good students at good schools have good chances of getting good clerkships, and (at least for my students at my own school) I and the rest of our staff are delighted to help you get one.

4. So why should I trust you, Volokh, to be my clerkship advisor or recommender?

But wait a minute, why should you trust me with any of this, since I’m on record in the Washington Post expressing my hypothetical-if-I-were-a-Supreme-Court-Justice preference for Harvard and Yale students? Why should I be trusted to advise you, write you recommendation letters, or generally fight for you when they’re looking for clerkships?

The easy and correct answer is: Well actually, these views of mine have nothing to do with my willingness to get you good clerkships, either in theory or in practice. (I’d add “Just ask many of my past clerkship advisees”, but I understand you might not have access to those.) But to flesh this out, let’s suppose you’re in my office and we’re thinking about your clerkship application strategy. Here are some questions you might have for me.

Q. Hey Volokh, I read the Washington Post . . . do you think there’s someone more qualified than me for the positions I want to apply to?

A. Maybe, maybe not. Remember how I said there was overlap between the Harvard distributions and the Emory distributions? I’ve had Supreme-Court-quality students here at Emory, and I’ve tried hard to get them prestigious feeder clerkships and Supreme Court interviews.

Q. O.K. Volokh, but supposing I’m not some hot-shot superstar Emory student, then you probably think there’s some Harvard/Yale student more qualified than me for the positions I want to apply to?

A. Fine, probably there’s some such person out there, who I’ve never met and who I’m not motivated to seek out. Maybe that person is at Harvard or Yale, maybe not. But you know what — and here I’m going to lapse into some legal terms of art — I actually don’t give a fuck about the welfare or job prospects of that hypothetical Harvard/Yale student, because they’re not my client. You’re in front of me and they’re not.

Q. But Volokh, if you were a Supreme Court Justice, would you rather hire a Harvard/Yale student?

A. Why yes, I probably would (that’s basically what I was quoted as saying in the WaPo article), if I were a Supreme Court Justice and assuming that hypothetical Harvard/Yale student, with identical grades/rank and everything else, were in my resume pile. But man oh man, I’m never in a million years going to be a Supreme Court Justice, or indeed any sort of federal judge, because I’m too Democratic for the Republicans and too Republican for the Democrats. And as for this hypothetical-thought-experiment identical-looking student — who says I would even have that student’s resume in my pile? And who cares what I would do if, hypothetically, I started wearing that different hat, which would give me a whole different set of priorities? I’m not concerned about the hypothetical efficiency of a hypothetical future-Volokh-judge; I’m concerned about getting you, who are in front of me, the best job possible.

Q. But Volokh, surely, given your views, if you were talking to a judge who had non-elite-law-school hiring preferences, wouldn’t you think those views were irrational and try to talk them into a more elite-hiring view?

A. No way: judges have the preferences they have, and if it turns out some judges are anti-elitist, or hate Yale, or have Emory loyalty, or had good experiences with Emory students in the past, or have different views about the quality difference between Harvard and Emory, or whatever, I’m delighted to capitalize on those preferences to help you get a job.

Q. But wait a minute Volokh, if you think Harvard/Yale students are (other things equal) so much better, then you must think that, on some level, the world would be a better place (i.e., we would have a better-quality judicial product) if the Harvard/Yale students got those clerkships and the Emory students didn’t. So how can we possibly believe that you’re truly fighting for our best interests?

A. This doesn’t follow. What if I told you that the quality of the judicial system isn’t just the quality of the law clerks? The quality of the judges is important, the quality of the clerks is important, and so is the quality of the lawyers appearing before the courts and writing the briefs. This goes for the Supreme Court, lower federal courts, state courts, and the whole entire system. Everyone’s going to get some job, so even if, hypothetically, all the Harvard students were better than all the Emory students (which, as I’ve said above, is clearly false), I have no idea why someone pursuing some global-good-maximization would want to stick the Harvard students in the top clerkship spots and the Emory students elsewhere.

Q. That’s clever, Volokh, I’ll give you that, but I think you’re fighting the hypo here. What if it turned out that all Harvard students were better than all Emory students, and that improving the quality of federal law clerks were the single most important factor in improving the quality of the legal system. [Editor’s note: wtf kind of hypo is that???] Wouldn’t you then really be rooting for a world where your Emory students lost all the clerkship jobs to Harvard students?

A. Ah, but there, even if I accept the outrageous assumptions of your outrageous two-part hypo, you’re attributing to me some kind of global-maximization motive that bears little resemblance to my actual motivations. If you do well, Emory does well, and if Emory does well, I do well. And vice versa and all that. It’s win-win-win. Because I’m here and not there, I’m helping you, because helping you also helps all of us around here.

Q. Really, so you’re just helping Emory students because of your selfish concerns?

A. Well, also I know you better, which generally makes me like you more than anonymous Harvard student I’ve never met.

Q. Still sounds like another form of selfishness to me. It’s not because you think the world would be a better place if Emory students got better jobs?

A. Well, also working at Emory is my job, and if you knew about my crazy libertarian views, you’d know that freedom of contract (and its twin brother, contractual obligations) are basically at the tippy-top of my scale of rights (and duties).

Q. So, still not because you’re trying to make the world a better place as a whole?

A. You’re still asking me to play along with your hypo where all the Harvard students are better than all the Emory students and federal law clerk positions are the single most important factor in the quality of the world? Well, if it makes you feel any better, it turns out my selfish-seeming concerns are also consistent with my views on the role of lawyers in society. The premise of our legal system is role responsibility: everyone should play the part they’re given as well as they can, and if everyone does their role properly, the whole system works well. As lawyers, we argue cases all the time where we disagree with our side’s position — and even where we would rule against our position if we were the judge. I can see how a layperson might think this is weird or impossible or maybe even unethical. But as lawyers, it should be second nature to us that working hard for a position is totally consistent with thinking that — if we were czars designing the whole system holistically — we would adopt the opposite position. That’s why I don’t assume that Supreme Court advocates believe the positions they’re arguing, and I don’t think any the worse of them for it: on the contrary, that’s our special lawyer superpower.

This is all a fancy way of saying that your newfound knowledge that I believe in elite law-school clerk hiring should have absolutely no bearing on your confidence that I want you to get an awesome law clerkship and will work hard to get you one, even if I knew for a fact (which I don’t) that there were better-qualified students competing for the same positions as you.

Q. Hmm, alright, this is weird, but O.K.

A. On the contrary, I think this is kind of conventional wisdom, only most people have the judgment to not go blabbing about it to the Washington Post.

Q. . . .

A. . . .

Q. But if elite law-school hiring is such a thing, then how are we going to get me that clerkship?

A. Aha, now we’re getting somewhere. The good news is that there are plenty of great law clerkships to go around, many more than the number of elite law-school students who are looking! And there are plenty of judges who don’t follow elite-law-school hiring and have hired Emory students in the past! And there are plenty of ways to distinguish yourself so the hypothetical identical-Harvard-student doesn’t exist in your judge’s resume pile. I’m repeating myself now, so I’ll just refer back to what I’ve written above. As you may remember from section 3, it turns out we know how to place Emory students in good clerkships, and we have a bunch of very capable people at Emory (including me) who are good at strategizing about it. Why don’t you stop by my office and we can talk about it.

The post Some thoughts on elite-law-school bias in clerkship hiring appeared first on Reason.com.

​ Does the bias exist? Is it a good thing? What does it mean for law students at lower-ranked schools? What does mean about me? 

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