The Rise of an Elite Judicial Fraternity

(Bloomberg Opinion) -- With the confirmation of Justice Brett Kavanaugh, a majority of U.S. Supreme Court justices have previously served as law clerks to other justices before them — an unprecedented situation on the court. The remarkable and perhaps unjustified rise of this elite-within-an-elite is worthy of discussion in its own right. But it also gives some context to last week’s revelation that the Heritage Foundation had planned a secretive boot camp for conservative law clerks about to start their jobs in the federal courts.

It’s not just that the conservative think tank wanted to provide some counterweight to the comparatively liberal law school curriculum. Heritage was aiming to get a head start in its efforts to influence future judges.

For conservatives, the path from law clerk to judge is getting shorter. Allison Rushing, nominated and under consideration for the U.S. Court of Appeals for the 4th Circuit, is 36 years old. She finished law school in 2007, and clerked for then Judge Neil Gorsuch on the 10th Circuit and Justice Clarence Thomas on the Supreme Court.

Indeed, a stunning 17 of Trump’s 41 appeals court nominees (41.5%) clerked for the Supreme Court. If you also count his Supreme Court nominees, Gorsuch and Kavanaugh, that’s 19 out of 43 (44%).

How unusual is that? Well, Supreme Court clerkships as we know them didn’t get their start until the beginning of the 20th century. The law clerks have included some distinguished figures, including Bill Coleman, the first black clerk and later secretary of transportation, and Philip Graham, publisher of the Washington Post. Unsurprisingly, there have also been many prominent law professors and lawyers. Maybe also unsurprisingly, there have been a few duds, like Alger Hiss, who clerked for Justice Oliver Wendell Holmes.

But until the current crop of justices, only three former law clerks in the history of the court had ever made it to the Supreme Court: Justices Byron White, John Paul Stevens and William Rehnquist.

These numbers were relatively small because a nomination to the Supreme Court was not generally treated as a reward for high academic achievement. There was a tradition of what was sometimes called the “scholar’s seat” on the court, but that was by definition thought to be about one justice at a time.

The good thing about clerks as justices is that they are necessarily bright and skilled in the art of legal doctrine. The bad thing is that clerks come from a narrow band of law schools and tend to share an extremely narrow range of legal and professional experiences after clerking. They tend to be personally cautious.

Former law clerks also typically respect the institution of the Supreme Court to the point of worship. That’s good if you think justices should be committed to the legitimacy of the court. It’s bad if you think the hidebound institution needs shaking up.

For the Heritage Foundation, the goal of the program — now canceled after it came out that participants were supposed to promise confidentiality as well as not to use it any of the information against the foundation — was presumably in part to give law clerks a dose of conservative ideology before they entered service.

As a law professor, I can see the logic behind the Heritage Foundation’s impulse to try to counteract the liberal tendencies of the legal academy. Most U.S. law students will be exposed to at least one or two conservative professors. But most law professors are liberal, and a good number are genuinely on the left.

That said, trying to influence law clerks in order to influence judges is a pretty silly use of resources. Federal judges at every level tend to be extremely clear about their own legal intuitions and the conclusions they want to reach. Law clerks are very helpful as researchers and as drafters of opinions, but they are almost always channeling their bosses, not shaping outcomes or even the general direction of legal reasoning.

This reality suggests that the Heritage Foundation wasn’t only trying to train a cadre of ideological commandos. They were aiming to lock in their influence with a group of people with disproportionate likelihood of eventually making their way into the judiciary themselves.

For conservative groups like Heritage and the Federalist Society, the ultimate aim is for the judiciary to be drawn from a small, elite, consolidated group of like-minded thinkers. The basic idea is that social solidarity and lifetime relationships will foster loyalty to the groups’ judicial philosophy. Judges and justices who are enmeshed in personal and professional relationships with one another — and with conservative groups — are presumably less likely to drift to the liberal side, the way Kennedy did.

It emerges that conservative judicial elitism isn’t only born out of respect for academic success in elite law schools. It also reflects a technique of ideological and social control.

Whether the technique will work depends a lot on Chief Justice John Roberts, the new swing voter. He clerked for Chief Justice Rehnquist, who had clerked for Justice Robert Jackson, making Roberts the court’s first, and so far only, grand-clerk. Roberts’s concern for the court’s legitimacy is second to none. That may ultimately push him toward the center — not the result the Heritage Foundation and Federalist Society are aiming to achieve.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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