Academic journal article Justice System Journal

High Court Recruitment of Female Clerks: A Comparative Analysis of the U.S. Supreme Court and the Supreme Court of Canada

Academic journal article Justice System Journal

High Court Recruitment of Female Clerks: A Comparative Analysis of the U.S. Supreme Court and the Supreme Court of Canada

Article excerpt

In this article, we systematically analyze the available data on SCOTUS clerk appointments to more thoroughly investigate the gender disparity in the hiring practices of its justices across the time period, 1941 to 2011, and compare this data, whenever possible, to that collected for the SCC from 1967 to 2007. In doing so, we are especially interested in exploring the impact of justice ideology and justice gender on individual decisions to hire female clerks. We maintain that the gender imbalance that has characterized the U.S. Supreme Court's composition might, at least partially, account for the discrepancy between the number of male and female clerks that have worked for this Court. It may also explain the notable relationship between a justice's ideology and his or her decision to hire female clerks.

KEYWORDS: clerk gender, clerk selection, U.S. Supreme Court, Supreme Court of Canada

It does not take long for an observer of Supreme Court litigation to notice some key names appearing on brief or at oral argument. As Professor Kevin McGuire uncovered in his 1993 investigation, "some Supreme Court lawyers... have extensive and dramatic experience before the Court" (McGuire 1993, 7). He further documented the now well-known tendency for such individuals to be drawn from very highly ranked law schools (McGuire 1993, 133). And, yes, since "clerks have a strong chance of being recruited by a firm or organization engaged in Supreme Court litigation" (McGuire 1993, 164), his study is now one of many to underscore the importance of the Supreme Court clerkship opportunity. Even those who do not aspire to be a member of the SupremeCourtbarwillfindtheirpreviousSupremeCourtclerkshipexperiencetobeatremendous resource in the development of lucrative legal and professional careers (see, e.g., Benson 2007, 23; Estrich 2006). As an indication of the value of a Supreme Court clerkship, the market rate for a bonus to attract former clerks to prestigious law firms now stands at $ 280,000-well above a justice's salary (Mauro 2012; Posner 2013, 301). Beyond just the economic benefits of clerking, the experience opens doors to the highest levels of legal employment, from the top law firms to legal academia, prestigious government opportunities such as coveted positions in the Office of the Solicitor General, the judiciary, and even the U.S. Supreme Court bench. Indeed, six former clerks have been appointed to the U.S. Supreme Court: Justices Byron White, William Rehnquist, John Paul Stevens, Stephen Breyer, John Roberts, and Elena Kagan (Supreme Court of the United States 2014). If, in fact, women are less likely to receive clerkships, then women may be less likely to have these prestigious opportunities. In other words, this may diminish the opportunities for women to have a distinct voice in a variety of realms, which all play major roles in legal policy making.

Perhaps more importantly, clerks potentially influence high Court outputs.1 For example, law clerks serving on the supreme courts of the United States and Canada play major roles in agenda setting (Flemming and Krutz 2002, 832; Perry 1991). In both institutions, the courts have discretionary jurisdiction. Parties seeking review by the Supreme Court of the United States (SCOTUS) must submit a petition requesting that the Court grant a writ of certiorari. Similarly, litigants asking the Supreme Court of Canada (SCC) to review their case submit an application requesting a leave to appeal. SCOTUS and SCC clerks are the primary actors responsible for summarizing these requests (Flemming and Krutz 2002, 832; Perry 1991). While this does not mean that the clerks set the agenda, it does mean that they have the opportunity to influence the process. Of course, there is at least some empirical evidence that law clerks, in some situations, do influence the decision to decide a case (Black and Boyd 2012, 147).

Similarly, law clerks on the SCC and the SCOTUS likely play a significant role in disposing of cases on the plenary docket. …

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