Unveiling America's Legal Controversies: A Peek into the Enigmatic Realm of Supreme Court Clerks
Discover the coveted world of Supreme Court clerks shaping America's legal landscape With power, influence, and lucrative opportunities, these Ivy League-educated scholars guide pivotal decisions, from affirmative action to the present day Join the fast track to success
Twenty years ago, when Supreme Court justices were deliberating cases involving college affirmative action, a ban on same-sex relationships, and a "three-strikes" law leading to life imprisonment for convicts, their elite young law clerks became increasingly agitated and divided.
Conservative clerks distanced themselves from their liberal counterparts, foregoing lunch together and discontinuing their weekly "happy hours." Even a charity Jell-O-eating contest (no hands) led to ideological discord over the selected charity groups.
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The Supreme Court's decision regarding mifepristone underscores the significant role of the courtroom in abortion care. Many of the 35 clerks from that controversial session, who are now two decades into their own careers, are now heavily involved in some of America's most heated legal disputes. The ideological divisions from their time at the court continue to influence constitutional law and US politics.
Formerly, serving as a Supreme Court clerk for one year has always been a pathway to authority, impact, and prosperity. Legal firms entice former clerks with signing bonuses of $450,000, the majority of whom graduated from Ivy League and other prestigious law schools.
This expenditure may be considered worthwhile, as previous Supreme Court clerks often hold esteemed positions within the judiciary. Research has revealed that justices are more inclined to consider appeals filed by former clerks than those filed by individuals who have never worked for a justice.
Former President Donald Trump handpicked former Supreme Court clerks for all three of his appointments to the high court. Additionally, out of his 54 US appellate appointments, 21 of the nominees were also Supreme Court clerks, marking a modern record of nearly 40%.
Among the various players in the courts ecosystem such as top lawyers, esteemed professors, and prominent commentators, former clerks have a significant impact. Their formative experiences at the court not only shape the connections they make, but also inform their future cases and roles in America's culture clashes.
Many former clerks from the class of 2002-2003 are now facing similar challenges in their careers, but at more advanced stages of their profession.
Liberal Gil Seinfeld, currently a law professor at the University of Michigan, vividly remembers the strong disdain expressed by right-wing clerks towards the progressive left during that time. He noted that the contempt was not directed towards individuals, but rather towards their approach to interpreting the law, which was seen as overly permissive and allowing left-leaning judges to exercise an excessive amount of discretion in significant cases.
Seinfeld noted, "At the same time, liberal clerks were not at all supportive of conservative interpretive methods, and many of us saw those methods as barely disguised tactics for promoting a conservative political agenda."
Adam Mortara, who worked for Justice Clarence Thomas two decades ago and is now a prominent conservative litigator, emphasized that perceived opposition.
Adam Mortara and Jonathan Mitchell
C-SPAN
"Winning arguments during that era of the court was much more like, Tell me about the vibe. How are you going to feel about this? What are the policy consequences?" Mortara told CNN.
"The experience was incredibly disheartening and not at all what I had hoped for in the legal field. I found myself despising a small group of law clerks, making it impossible to socialize with them," he said.
Today, the well-established path from clerkship to judgeship continues to perpetuate the influence of certain justices on the law, through their followers.
Harvard law professor and former dean Martha Minow emphasized that the knowledge, values, strategies, and ambition gained during a former clerk's year at the court can have a significant impact on their future careers. This year, Mortara's experience as a trial lawyer in the challenge to Harvard's affirmative action practices represented a significant change from his role as a law clerk to Thomas 20 years ago, ultimately leading to the Supreme Court's landmark ruling against race-based admissions policies nationwide.
Mortara is currently under contract with the state of Tennessee to support its ban on gender-affirming drugs and surgery for transgender minors. He has also been brought in by Wisconsin Republican officials to assist in their legal battles against Democrats in regard to redistricting.
Jonathan Mitchell, a fellow conservative from the 2002-2003 term, has a significant role in America's most divisive social policy issues. He was the mastermind behind the Texas abortion ban known as SB 8, which restricted the procedure at around six weeks of pregnancy with few exceptions. The Supreme Court's consideration of the law ultimately led to a decision to reverse Roe v. Wade last year. Mitchell was also a former clerk to Justice Antonin Scalia.
Mitchell has ongoing litigation in the lower courts, including two cases related to LGBTQ coverage under the Affordable Care Act and Title VII of the Civil Rights Act. Additionally, Mitchell is the lead attorney challenging the federal government's ban on rapid-fire "bump stock" firearms at the Supreme Court. Another conservative clerk from 20 years ago, David Stras, was appointed to the 8th US Circuit Court of Appeals by Trump.
Stras authored a groundbreaking opinion in November that aimed to eliminate remedies for discrimination under the 1965 Voting Rights Act. His stance was that only the US Department of Justice, and not private parties, could sue for voter discrimination, which went further than any previous Supreme Court decision on the matter. If his position is affirmed by the high court, it could significantly reduce the ability of Black and Hispanic voters to uphold their rights. Emin Toro, who worked with Stras in Thomas chambers, was appointed by Trump to the US Tax Court in 2019, in a less ideological and shorter tenured position than his colleague. Tax Court judges serve for 15 years rather than for life.
Robert Hur, a former clerk from that session who worked for then-Chief Justice William Rehnquist, is now serving as the special counsel investigating possible mishandling of classified documents by Joe Biden. This investigation could impact the president's re-election bid and may also have implications for the Florida classified-documents case involving Trump, who is Biden's leading GOP opponent. Another law clerk from the 2002-2003 term, Eric Olson, previously worked for Justice John Paul Stevens and is currently involved in litigation in Colorado to prevent Trump from appearing on the 2024 presidential ballot due to his involvement in the January 6, 2021 insurrection.
The voters who are challenging Trump argue that according to a provision in the Fourteenth Amendment, officials who have "engaged in insurrection" should be blocked from holding office, which would include the former president. Sean Grimsley and Jason Murray, who worked as clerks after Olson, are both partners on the case. Court opinions from the 2002-2003 term reveal that Toby Heytens, now one of Biden's first US appellate court appointees, was in the majority in an important 4th US Circuit Court of Appeals opinion on a high school admissions dispute pending at the Supreme Court. Jesse Furman, an Obama administration district court appointee, had a ruling that led to a Supreme Court showdown over Trump's plan to add a citizenship question to the US Census.
US Attorney Robert Hur addresses the media following former Baltimore mayor Catherine Pugh's admission of guilt in the "Healthy Holly" case, involving conspiracy and tax evasion, in this 2019 image.
Cristina Rodriguez, currently a Yale law professor and formerly part of the left-leaning term, was chosen by Biden to co-chair his Presidential Commission on the Supreme Court. This photo shows Rodriguez on the left.
Biden prioritizes diversity and legal background in his judicial selections, in contrast to Trump. Ketanji Brown Jackson, the first black woman justice, is a Supreme Court clerk and previously clerked for Justice Stephen Breyer, who once served as a clerk to Justice Arthur Goldberg. Today, six out of nine justices have previously served as Supreme Court clerks, including Chief Justice John Roberts, Associate Justices Elena Kagan, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Jackson.
How to get on the fast track
Major law firms are competing to gain insights from within and are now offering signing bonuses of $450,000, a figure that significantly surpasses the annual salaries of the justices. (The eight associate justices earn $285,400 per year, while the chief justice earns $298,500.)
The nine justices usually hire four law clerks each to assist in reviewing petitions from individuals who have lost cases in the lower courts. These clerks are primarily selected from Ivy League and top schools like the University of Chicago and Stanford, and typically have completed a one-year clerkship with a US appellate judge. Their main responsibilities include conducting research and assisting in the writing of opinions.
Twenty years ago, Rehnquist and Stevens, both from the Midwest, were open to candidates with a background from state universities. In the 2002-2003 term, they each selected graduates from the University of Illinois law school.
Thomas, the sole surviving justice from two decades ago, was also receptive to top students from various schools, despite his strict conservative views. Stras graduated from the University of Kansas law school, and Toro from the University of North Carolina law school.
Justices Breyer and David Souter, who are now retired, exclusively hired law graduates from Harvard and Yale for a total of eight clerks during the 2002-2003 term. Despite the prestige and future opportunities that come with a clerkship, many exceptionally talented lawyers opt not to apply or are not selected. Conversely, there have been former clerks who are considered average by their peers. Regardless of their abilities, clerks do not surpass the significance of the life-tenured justices they assist.
Former clerks have traditionally followed a well-established path to corporate law offices, university professorships, and top government positions. According to Harvard's Minow, who was herself a law clerk to Justice Thurgood Marshall in the 1980-1981 session, one of the most significant developments in the careers of former clerks has been their increasing presence on the federal bench.
Supreme Court Justice Clarence Thomas meets with his law clerks during the 2001-2002 term.
David Hume Kennerly/Getty Images
She also highlighted the clerk pipeline developed by the Federalist Society, a conservative group that has recommended judicial candidates for Republican presidents since the 1980s and has become a particularly influential partner to the Trump White House.
"The Federalist Society's leaders have groomed the short list for judicial appointments, and they have increasingly focused on grooming clerks who will support the judges that the Federalist Society has helped to place on the bench," Minow said.
2003 flashpoints
When questioned about the Federalist Society's pipeline, Leonard Leo, a prominent figure in the organization, stated in an email, "It's not very surprising that Federalist students secure High Court clerkships - they are usually intellectually engaged and rigorous, qualities that judges look for in their clerks."
CNN interviewed over 12 clerks and reviewed the late Justice Stevens' papers at the Library of Congress to gain insight into the deliberations and atmosphere of that year. The clerks reminisced about productive conversations and the lasting friendships they formed. One of the lighter moments included piano performances by Mitchell and harp performances by fellow clerk Allyson Newton Ho.
Sandra Day O'Connor's former clerk, who is now a prominent appellate lawyer at a large firm, has dedicated her pro bono work to conservative religious liberty causes. She is married to James Ho, another former clerk, who was appointed by Trump to the 5th US Circuit Court of Appeals. As new relationships are formed, memories of significant cases continue to linger in many minds.
Two of these controversies caused some conservatives to feel alienated and disheartened. The issues stemmed from legal challenges to Texas' prohibition of intimate relationships between same-sex couples and affirmative action policies at the University of Michigan. Justices O'Connor and Kennedy, known for their moderate conservative views, were instrumental in deciding the outcome of these cases.
Both decisions were fiercely contested and came down to the last days of the session.
"At the end of a Supreme Court term," former Stevens clerk Amy Wildermuth remarked, "everyone has been working tirelessly on high-stakes cases. And, honestly, we were all so young. Looking back, I can see how it was like a pressure cooker."
Wildermuth, now a law professor at Ohio State University, emphasized the positive aspects of her experience, despite being aware of unease in other chambers.
The expectations leading into the term likely influenced the sentiments of some clerks at the end. Two years earlier, the court had ruled in favor of Republican George W. Bush in the 2000 presidential election and had been delivering a series of other conservative victories. While the right-wing may have anticipated more, clerks working for liberal justices Stevens, like Wildermuth and Olson, or Justices Souter and Ruth Bader Ginsburg, like Furman and Heytens, respectively, may have believed they would be tasked with drafting dissenting opinions.
But this is not how things unfolded. A divisive factor among the groups of clerks was the fact that conservative justices at the court's core cast crucial votes in favor of liberal outcomes. Kennedy authored the court's opinion supporting gay rights in the Lawrence v. Texas case, while O'Connor wrote the decision upholding the University of Michigan's affirmative action in Grutter v. Bollinger.
"I believe that relationships within the building generally became more tense as the term progressed," said Seinfeld, who worked for Scalia, known for hiring one "counter-clerk" among the four. "As a liberal clerk in a conservative chamber, this was definitely the case for me. As we approached May and June, I spent less time in my own office and more time with friends in the Souter and Breyer chambers."
Mortara and Mitchell, along with other conservatives, joined forces in dismay.
"The most disheartening aspect of the experience, for formalists like Jonathan and myself, was the jurisprudential approach of the court's center," Mortara explained.
How decisions developed and the center held
The documents from Stevens shed light on Kennedy's process of revising several versions in order to establish legal protection for homosexual sexual behavior within the constitutional due process clause's liberty guarantee.
Wildermuth was found to have assisted O'Connor in drafting a concurring opinion that aligned with Kennedy's decision to invalidate anti-sodomy laws. This was despite O'Connor's previous vote in favor of upholding such bans, as she was now prepared to shift away from her previous support based on different constitutional grounds from Kennedy. O'Connor sought input on specific wording from Wildermuth, who was openly gay at the time.
The issue of gay rights created significant tension for two of Scalia's clerks, albeit for different reasons. Scalia strongly opposed the majority's belief in a private right to same-sex relations.
Seinfeld stated that he had already made up his mind to avoid Scalia's dissent even before reading it.
In his dissent, Scalia stated, "Today's opinion reflects a Court and law-profession culture that has largely embraced what some homosexual activists advocate for, which aims to remove the moral judgment traditionally associated with homosexual behavior."
Attorneys Eric Olson, right, and Sean Grimsley listen as Jason Murray argues before the Colorado Supreme Court on Wednesday, Dec. 6, 2023, in Denver.
David Zalubowski/AP
Seinfeld mentioned that Scalia spared him from any research or editing work for that dissenting opinion, and Seinfeld also shared with CNN that Scalia never appeared to blame Seinfeld for his decision.
On the other hand, Co-clerk Mitchell has come to the defense of Scalia's dissenting position. In a posthumous essay, Mitchell asserted that the 1986 case of Bowers v. Hardwick had definitively resolved the issue.
More recently, Mitchell has been actively involved in legal battles seeking religious exemptions for private businesses from LGBTQ discrimination claims under Title VII. In a separate case opposing the Affordable Care Act's preventative services requirement, he has argued that the mandate to provide medications for HIV prevention infringes on federal religious-liberty laws. Additionally, he is representing a Texas justice of the peace who refuses to officiate same-sex marriage ceremonies.
Affirmative action then and now
Mitchell has expressed support for Mortara as he advocates for the defense of Tennessees ban on sex-transition healthcare for adolescents experiencing gender dysphoria. Three transgender youths and their families are currently in the process of suing the state in an attempt to block the law; their appeal is pending at the Supreme Court.
In 2021, the Supreme Court's decision to reverse the 2003 affirmative action case from the University of Michigan brought renewed attention to the issue. The court's decision marked a change in the endorsement of race-based admissions practices for student-body diversity, a practice that was previously affirmed in the 1978 landmark case of Regents of the University of California v. Bakke. Justice O'Connor, in her majority decision, set a 25-year timeline for this practice.
Several ex-clerks from that term, who spoke with CNN anonymously, expressed discord regarding O'Connor's 25-year reference. The justices had differing opinions on the extent to which the time limit should be enforced.
"We anticipate that in 25 years, the utilization of racial preferences will no longer be required to advance the interest supported today," she had penned, a sentiment that appeared more hopeful than definitive.
The clerks stated that conservatives made significant efforts to establish this as a formal principle, or a "holding" of the case, while liberals sought to reduce its impact.
In opposition to the decision supporting affirmative action, Thomas wrote, "I concur with the Court's determination that racial discrimination in college admissions will be prohibited in 25 years."
Meanwhile, Ginsburg, together with Breyer, attempted to present that "25 years" as a goal, rather than a directive. "Looking at the present moment, one might wish, but not confidently predict, that in the next decades, advancements towards non-discrimination and truly equal opportunities will make it possible to phase out affirmative action."
Supreme Court Justice Anthony M. Kennedy stands in his chambers with his clerks during the 2001-2002 term.
David Hume Kennerly/Getty Images
Mortara, Thomas clerk, and other lawyers representing Students for Fair Admissions resurrected Thomas' perspective in their case against Harvard, stating in a brief that "Grutter concludes with a warning that the Court expects racial preferences will no longer be necessary in 25 years. This statement was not wishful thinking, but rather stemmed from a legal principle." The court majority that struck down affirmative action agreed with that assessment.
When asked by CNN if he ever imagined back in 2003 that he would eventually be able to benefit from Thomas's 25-year tenure, Mortara responded, "Definitely not. Definitely not."
Andrew DeVooght, who worked as a clerk for then-Chief Justice Rehnquist 20 years ago and is now employed at a major firm in Chicago, witnessed the firsthand disappointment of more conservative clerks as decisions reached their final stages.
"There was a faction within the conservative side that felt severely defeated last year," he said.
However, today's court, with its conservative supermajority and no centrist successor to O'Connor or Kennedy, is noticeably different. The clerks who walked away upset and disillusioned 20 years ago now have the ideological advantage.
