THE BLOG
11/02/2013 06:07 pm ET Updated Jan 23, 2014

The Difference Between Conservative and Liberal Justices

This is just a tidbit, but it is revealing. Each Justice of the United States Supreme Court has four law clerks. Law clerks are recent law school graduates who serve for one year as a legal assistant to a Supreme Court Justice. Law clerks are very important to the work of the Court. In each chamber, the Justice and the four clerks form a close-knit intellectual family. It is with their law clerks that Justices are able to speak openly and to engage in a candid give-and-take, testing ideas, theories and approaches as they consider the merits of each case. Moreover, in most chambers the law clerks play a central role in preparing drafts of a Justice's opinions.

I know this not only from my students who have gone on over the years to clerk for one or another of the Justices, and not only from my many conversations with individual Justices, but also from personal experience, because I had the great privilege of serving as a law clerk to Justice William J. Brennan, Jr. during the Court's 1972-1973 Term.

I was curious about how the current Justices select their clerks. All Supreme Court law clerks these days spend at least one year before clerking on the Supreme Court as a law clerk to a lower court judge, usually a judge on a United States Court of Appeals. In this way, they gain useful experience to prepare them for the task ahead.

Here is what I learned. Of the 20 law clerks appointed this Term by the five conservative Justices -- Roberts, Scalia, Kennedy, Thomas and Alito, 18 of the 20 -- or an astonishing 90 percent -- clerked last year for a Republican-appointed judge. Of the 16 law clerks appointed this Term by the four more liberal Justices -- Ginsburg, Breyer, Sotomayor and Kagan, only 9 of the 16 -- or 56 percent -- clerked last year for a Democratic-appointed judge.

What this reveals -- disappointingly, I might add -- is that the conservative Justices are determined to spend their time with pre-cleared conservative law clerks. Indeed, Chief Justice Roberts, Justice Scalia and Justice Alito hired as their law clerks this year only individuals who had clerked last year for Republican-appointed judges. Whereas the more liberal justices were clearly interested in exposing themselves to a range of different viewpoints and having the positions challenged, the conservative justices went way out of their way to ensure that their law clerks were already in sync with their judicial ideology.

Justices, of course, are free to appoint whomever they choose as their law clerks. And it is possible to conjure "neutral" explanations for this pattern. Perhaps the Republican-appointed Justices trust only Republican-appointed judges to offer wise or honest recommendations. Perhaps they are just being loyal to their friends -- the Republican-appointed lower court judges. But I doubt it.

What is really going on here is a combination of intentional insularity and ideological patronage. Instead of wanting to have their ideas tested and challenged by their clerks, the conservative Justices apparently want their law clerks to applaud and affirm their views. That is their prerogative, but it does not speak well of their judgment. And this pattern is also clearly about patronage -- it is about the conscious and considered goal of the conservative Justices to promote the careers of conservative young lawyers. After all, a Supreme Court clerkship is a ticket to a very special future -- important positions in government, judgeships, and perhaps eventually appointment to the Supreme Court itself. This sort of political patronage is surely unseemly, at best.