Women Clerks at the U.S. Supreme Court

by Angela N. Johnson

Cynthia Cooper explores the gendered makeup of the U.S. Supreme Court clerks and the fact that women clerks seem to be stuck at the “1/3 mark,” having never comprised more than 1/3 of all U.S. Supreme Court Clerks.  The reason this is important, is that a U.S. Supreme Court clerkship is seen as a prestigious springboard into some of the most elite positions; when women are excluded, they inevitibly comprise a smaller portion of the eligibility pool for the most elite jobs (Cooper 2008).

These clerks are largely the crème de le crème of all clerks. According to Cooper, these clerks tend to have many things in common including, law degrees from elite schools where they graduated in the top of their classes, served as editors for their law reviews, performed research for key professors, and are alums of prestigious federal appellate court clerkships (many of the federal courts are seen as “feeder” courts to SCOTUS clerkships). Many of these informal eligibility requirements may factor into the fact the SCOTUS clerks are predominantly male. In examining the last 14 terms Cooper found that only 19 to 40 percent of the Supreme Court Clerks have been women. Given what we know about informal requirements, Cooper questions, “Is there a clog in the pipeline?” Cooper notes that it may be difficult to determine whether substantial discrimination in hiring exists because applicant data for these clerkships is held in close secret.  However in looking at the disparity within the types (prestige) of clerkships, Cooper examined the Judiciary Fair Employment Practices report of 2007 which included (for the first time) a gender breakdown for clerks in the federal bankruptcy, district, and appellate courts. This report showed that women comprise a majority (64.7%) of clerks to the less prestigious bankruptcy court clerkships; 59.89% for the district court clerkships, but just 42.4% of clerks for the federal court of appeals – the appellate clerkships are the most highly regarded and viewed as “feeder” courts to Supreme Court clerkships.  According to Cooper, this necessarily narrows the pool from which the Supreme Court draws.

In further examining the eligibility pool, Cooper notes a study conducted by David H. Kaye and Joseph Gastwirth.  When studying whether women are equally represented in the top positions on the flagship law journals, they found they comprised only one-third of the officers at Yale (35%) and University of Chicago (36%). Then when mapping people from feeder schools to feeder judges, they found that women comprised just 32% of those included in the eligibility pool.[1]

When examining the hiring patterns of the Supreme Court justices, it is interesting to note that ideology may not play a large role.  For example, while conservative Justice Clarence Thomas hired 42.9% of law clerks from 2000 to 2006, moderate Justice Anthony Kennedy had only 10.14%.  However, the fewest women hires were by conservative Justice Antonin Scalia, with 7.14% women.

Other factors may play a part as well.  As a hypothesis, one can assume factors such as “fewer mentors among key professors, lesser mobility, lower ambition, family concerns, and the reliance of justices on familiar networks” (Cooper 2008) all hinder women’s ambition for and success in securing a clerkship.  Cooper interviewed clerkship administrators/organizers from various prestigious law schools and of those interviewed, responses indicated that all graduating law students and alums are encouraged to apply and that gender discrimination does not appear to be a factor in the application process.  This is important because as mentioned previously, applicant data is not available so it is impossible to determine whether women are applying in equal numbers.

In sum, I found Cooper’s article to be well researched (despite the lack of available information) and enlightening in terms of the leaky pipeline and eligibility pool for women seeking prestigious clerkships.  One factor Cooper did not address but may be an additional hypothesis in determining why women tend to comprise the majority in the less prestigious clerkships but the minority in the appellate and Supreme Court clerkships is that bankruptcy and federal district courts by number, are more likely to be within a close distance from which a clerk/applicant already resides.  If relocating is a factor that hinders women more than men, then this could possibly explain the disparity. Without available information on applicants, all of these hypotheses would be difficult to test.

[1] The study of flagship law journals and women’s participation is slightly different from the study conducted by “Ms. JD” wherein researchers examined women’s participation on all law reviews for all ABA accredited schools (not just the “flagship” journals which are seen as a more prestigious prerequisite to Supreme Court clerkship.  In that study, it was discovered that while 44.3% of law review members were women, just 33% of law review editors in chief were women.

Source Citation:  Cooper, Cynthia L. “Women Supreme Court Clerks Striving for “Common Place”.” Perspectives (American Bar Association) 17, no. 1 (Summer 2008): 18-22.


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