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Law firms pay Supreme Court clerks $400k bonuses – what are they buying? (nytimes.com)
264 points by elsewhen 33 days ago | hide | past | favorite | 162 comments



The title is a not particularly well-evidenced suggestion that firms are paying litigators for access. Rather, they are paying these people for exactly what you'd expect: they're the absolute best law students in the country and they have work experience that gives them a leg up in the toughest types of litigation the firms handle.

The latter claim is much more interesting. Though obscured by the title, the purpose of the article is to cover an forthcoming PRQ study which argues that (with a credible but not iron-tight causal inference design -- basically achieving conditional ignorability through a matching estimation strategy and further adjusting for case-specific details in a pretty normal way) former clerks do much, much better at getting their former boss's vote than expected, even net of the confounders you'd expect (ideological agreement, relevant case characteristics).

The article, which is open access (https://journals.sagepub.com/doi/pdf/10.1177/106591292094813...), is short, written in quite plain English, and has a better discussion of theoretical arguments about the revolving-door.

Inside academic social science baseball: I am a tad surprised this ended up at PRQ and not, say, JOP or the APSR or even AER.


I don't understand how you square your first paragraph with the content of that study. They aren't better based on skill within the category of cases, they're better on the cases that they have a direct social connection to. I mean even the abstract contradicts your first paragraph in plain language.


The study is very well done, and I suspect the conclusion that former clerks have an edge in understanding justices’ idiosyncratic views is correct.

That said, the connection between clerkship bonuses and those margins is not demonstrated at all. The time between a clerk being hired and being allowed to argue before the Court in a major case can be decades. The “billion dollar” cases are argued by established lawyers, not new clerks.

The reason for the bonuses is simpler: there are 36 or so clerks every year and clients are impressed with them, even with non Supreme Court work. (Most clerks don’t end up practicing before the Supreme Court anyway.)


"former clerks do much, much better at getting their former boss's vote than expected, even net of the confounders you'd expect (ideological agreement, relevant case characteristics)."

I don't see why this is surprising?

To take an example from my experience with academia, I could write a paper by myself or I could have my advisor go over it give feedback and edit it (we would call it sprinkling his magic pixie dust over it). There was nothing necessarily informationally different in the paper (though there could be that too, he would motivate us to do explain certain things better or do different experiments). Why? Because he sat in the program committee meetings where papers were accepted and rejected, he now knows why people who sit on those committees accept or reject papers. He can then make sure the papers written by his students are tailored to those desires.

I would expect the same exact results from a former clerk to their former boss. they know exactly the type of arguments that their former boss finds persuasive and those that they don't and would hence tailor the arguments in such a way, such that even someone with ideological agreement could not without that insider knowledge.


Thanks for linking to the paper, I confess I hadn't gotten that far in the article.

I would say they "aimed for" rather than achieved identification (conditional ignorability) here...a bunch of backdoor baths come to mind (likability, for one: these people got clerkships in part because they got the best letters of recommendation, which they got by impressing the right professors, which they got (I imagine) by being likable).

They kind of address this here:

> Rather, whether a former clerk succeeds is predicated upon having expertise about the justice whose vote she seeks to capture. If quality was a confounding variable, then we would expect to find that former law clerks, by virtue of being the best and the brightest, always outperform non-clerks. They do not.

This is interesting, but effects only observed in a subset of the data -> complexity penalty! How much this bothers you is gonna vary. I'm a stickler for identification, so I view this paper's results as more tentative than you might.

(Regarding the journal outlet: it's an interesting empirical finding, but is it really a landmark in terms of methods or findings? I don't think so. And if they were aiming for AER, maybe they should have included a structural model ;))


SCOTUS clerks aren't the best law students in the country; they're simply the best connected law students in the country. Almost all SCOTUS clerks come from two law schools, and work for judges that went to their law schools. It is rare for a judge to select a clerk that didn't go to their own law school.

The federal judiciary isn't a meritocracy. It's a pissing contest between Harvard and Yale and the sooner they lose their stranglehold on the judiciary the better it will be for everyone.

So what are law firms paying for with these massive bonuses? Access, and knowledge. SCOTUS clerk almuni have access to SCOTUS judges, and knowledge of their judge's thought processes, biases, etc.


> The federal judiciary isn't a meritocracy. It's a pissing contest between Harvard and Yale

And how do you get in to Harvard or Yale law?


And how do you get in to Harvard or Yale law?

Generally?

1) Be a legacy admit. This is the easiest way to get into Yarvard Law.

2) Be an Ivy League undergraduate. This is the second easiest way to get into Yarvard Law, because you have the opportunity to get law professors to vouch for your admission even before you apply, and the grade inflation in the Ivies means that your transcript will easily beat any student that went to a public university or college.

3) Be a token minority student (i.e., not White or any type of Asian) with excellent grades that graduates top of your undergraduate class, because Yarvard Law needs token minority admissions every year to put on their brochures. (In Yarvard's defense, this is true of almost every law school.)

4) Be rich and do things during college that most people can't do during their summers, like volunteering at the Hague, or having your parents make a generous donation to the school.

5) If there are any spots remaining after categories 1-4, excel at the LSATs, get a 4.0 GPA in undergraduate (the major does not matter), and ace the admissions interview. Generally, there are only a handful of spots remaining by this point so you are competing with thousands of other applicants for a dozen or so spots. (In this regard, Legally Blonde is actually pretty spot on: a 4.0 in a fluff major is just as good as a 4.0 in an engineering major for Yarvard admissions purposes.)


Do you have a source on this? I moderate reddit’s law school admissions forum and have never once heard of legacy admissions being a factor for law schools.

I’m not saying it’s not a thing: Yale in particular may have different rules since they’re at the very top. But law school admissions are heavily heavily affect by gpa/LSAT medians. School rankings rise and fall based on those, and there’s no fudging it.

I just searched the forum and the consensus seems to be legacy is at most a small soft, unless the parent is a large donor. (Softs tend not to count for much in law school apps unless you already pass the medians)

https://www.reddit.com/r/lawschooladmissions/search?q=Legacy...


I moderate reddit’s law school admissions forum and have never once heard of legacy admissions being a factor for law schools.

Harvard Law admitted to using legacy admissions in 2017, when it announced it was reducing (but not eliminating) the practice.

And with all due respect, redditors' opinions are not authoritative on this matter, especially when they conflict with the actual statements of one of the institutions under discussion...

But law school admissions are heavily heavily affect by gpa/LSAT medians. School rankings rise and fall based on those, and there’s no fudging it.

Law school rankings are not based solely on GPA/LSAT scores. Numerous other factors go into the "rankings" and the weightings are modified every year, including the respective weight given to GPA/LSAT scores. Given that LSAT scores are no longer required at Harvard, you should be familiar with the reduction in weight given to LSAT scores in the rankings for the 2018 year and onward.


The ranking factors are here: https://www.usnews.com/education/best-graduate-schools/artic...

LSAT and gpa are the only student specific ranking factors. And bar passage/placement, but those correlate with grades which correlate with LSAT/gpa.

It’s really what the schools care about: the rankings matter. LSAT/gpa are what affect their rankings, so they’re the governing interest.

Legacy is on their forms, but my point is it is not a large factor at the law school level.

All the top admissions consultants are part of that admissions forum. If your only source of knowledge is reading what schools say then you don’t really have experience in how what they do differs.


Anyone thinking they're going to get into Yale law by being in any of these categories is in for a rude awakening.

Undergrad is one thing, grad and law schools are something entirely different. You want a shot at Yale Law, you'd better be bringing something extra to the table. Maybe you did research into a novel, niche and esoteric area of finance at the London School of Economics before working in Silicon Valley or on Wall Street for [insert big name here] fund? Maybe you've been doing UN Observer work in the Congo? Maybe you helped Norway work through the technical hurdles of exploration in the North Cuba Basin?

But dropping out of a vagina that happened to be in a Penthouse on 5th Ave? I can tell you right now, that's not going to get you very far. You'd be surprised how many people are born to wealthy parents. Neither is being non-white likely to help you much. It may also surprise you how many non-whites there are in the world.

But be of good cheer. All hope is not lost for the ludicrously wealthy, or the non-white. Are you ludicrously wealthy and/or non-white, and a principal engineer or project manager on the Grand Renaissance Dam? I can guarantee, Harvard, Stanford, and Yale want to speak with you.

Getting good LSAT scores along with bringing something to the table is the quickest way into these schools.


Pretty much everything you've described would either require the candidate to be wealthy or to be from a family having immense wealth and the connections that go with wealth.


Is doing UN observer work in the Congo or leading construction work in Ethiopia open to people who aren't wealthy or well-connected?


Putting aside the connections that you need to get some of the missions you describe, if you’re not wealthy you can’t afford to do that kind of stuff


This is just not an accurate assessment of the admissions process.

> Neither is being non-white likely to help you much

Oh please. I actually think this is a good thing, but you're kidding yourself if you think being a non-Asian minority isn't an absolutely massive boost, even in professional school (and note: law school isn't grad school).

Similarly, the parents of influential and well-connected children will get a second look, plus as others have mentioned - many of the tasks you are listing are limited to the wealthy.

It definitely takes merit to get into Yale law - but even with merit it is a crapshoot. Being rich, well-connected, or the benefit of affirmative action policies gives you a step up there. This is also true for HMS.


> with excellent grades that graduates top of your undergraduate class

how does this in any way equate to "token"?


The user is being unnecessarily condescending (and frank;y I’m not sure they have actual knowledge of the domain). But what they’re referring to is the URM boost.

This article has stats. Harvard boosts urm admissions by 10,000%, Yale by 800%. Data from 2017. This means they get in with lower gpa’s and lower LSAT scores. A .10-.11 gpa difference for yale-harvard and a 5-7 point LSAT differential.

https://blog.powerscore.com/lsat/do-underrepresented-minorit...


If have two top-of-their-class candidates, being a minority pushes you over the line.


Legacy admission, of course.


People without merit getting admitted to top law schools because of legacy/donors happens, but not nearly as much as some people seem to think. Legacy admits are not necessarily without merit.

My guess is that most of the low merit admits are people with significant political influence that the school thinks it would be beneficial for law students to network with (people like Hunter Biden who went to Yale law, Tiffany Trump, etc.) Those people are never going to get close to an actual clerkship though.

Could those downvoting explain why?


> Tiffany Trump

... who went to Georgetown law (typically in the 10-20 rank range).

Note that this is the best she could do when her father was running for president.


I'm not claiming it's a deterministic process, but it is worth noting that Gtown is the best in DC


To followup: based on the average GPA of Georgetown Law admits, Tiffany Trump would have had to make the UPenn Dean's List to have a competitive GPA. The list is public.

She never showed up on that list. Ergo, she did not have a competitive GPA. It's possible she may have had a good LSAT, but she would have needed a very high score to offset the low GPA.

As Georgetown Law appears to have been the most prestigious law school that would admit her, this suggests she was a "legacy" admit (meaning, admitted due to her parents or application sponsors rather than on her own merits).


FWIW, I completely agree that she was admitted to Georgetown (and probably Penn, for that matter) for reasons other than academic prowess.

I only highlighted her name to demonstrate that celebrity and money can only get you so far. Georgetown is a perfectly fine law school, but it’s a far cry from Harvard or Yale law schools.


That's not what a legacy admit is defined to be.


That's exactly what a legacy admit is defined as. What non-standard definition are you using?


"Legacy preference or legacy admission is a preference given by an institution or organization to certain applicants on the basis of their familial relationship to alumni of that institution."

https://en.wikipedia.org/wiki/Legacy_preferences


Legacy admissions usually refers to admitting a student because they're related to alumni of the same institution. Which Trump went to Georgetown?


Eric Trump.


Last time I checked it was either Harvard or Yale that admitted about 30% of legacy students but only single digit percentages for regular people — so to some extent you are right.


That is for undergrad, and it's worth noting that the average test scores of an admitted legacy student > the average score for all admitted students.

Yield calculations have a lot to do with legacy admission rates.


To be clear - I'm not stating that there aren't legacy preferences or that the increased admit rate is solely or even majority due to the high test scores - it's not.

A legacy with a 1600 has a substantially higher chance, due to their parents alma mater, than a non-legacy with a 1600.


Are you saying legacy's have an ABSURDLY higher average test score? Could you share a source on that? To explain a 30% gap in outcomes for two demographics solely by test scores would mean the test score difference is absolutely insane.


I'll try to find a source for that, it's somewhere in the SFFA trial documents but I'll need to go back and look.

But to be clear: I'm not trying to claim that there is no legacy preference and that it can be all explained by test scores. It is definitely a big factor.

The only two points I was making is that 1. traditional "legacy" admissions is not necessarily the route that a lot of students without any merit are getting into these top schools - they often have separate pathways for donors and super elite individuals, like Harvard's "z-list."

2. Legacy admissions are because schools know that if they admit more legacy, they will get more donations - but it also has to do with calculations about selectivity. Harvard wants to maximize the chances that the people it admits will choose Harvard so that they don't have to admit more people to fill the class thus raising the admission rate.


Someone said "these schools admit 30% more legacies than peasants" and you said "yeah, but legacies get better test scores than the peasants."

And your clarifications really don't address that, and you even seem to back away from it now. Why even make the absurd claim about the intellectual and test-taking superiority of legacies over the peasants if it isn't significant - as you're now claiming?


You're the first person to use the word "peasants" to refer to non-legacy applicants and I in no way think there is some sort of "intellectual" superiority or elite class of people in the US (well, economic elite - but not intellectual).

All I wanted to clarify is that these legacy processes only really come into play once you have already hit some minimum threshold of merit, and there are different backdoors for super rich/connected applicants that require no such threshold.

Tests are not the same thing as intellect - they are often structured in a way that is unfair to people with low incomes (for instance: the more times you pay to take a test, you can then select the top scores). All of these are pathways that would still exist without legacy.

You're construing my comment as taking a stance that it wasn't - but in case it wasn't clear now, legacy admissions are unequivocally bad. Privileging class status in admissions is obviously bad.


Could you edit your original statement with this clarification? It's not at all obvious or clear, and I think it says quite the opposite - you are emphatically stating it's ok for that legacy / non-legacy gap because legacies have way higher test scores, which seems a very dubious claim given how unbelievable the score gap would have to be to account for a 30% difference.


I don't think I'm emphatically stating it, but I can see how you would read it that way. I added a clarifying reply, but it is too late for the comment to be edited.


Legacy admissions in law schools is much less of a thing than in undergraduate programs because classes are very small, and the school rankings heavily weight LSAT interquartile ranges.


The obvious response is that Harvard and Yale are the best law schools, so it's not inconsistent that all the best students come from there. I don't know if that's the case, but looking at LSAT ranges at least they seem to be at the top.


Sounds highly subjective obfuscated in a layer of objective measures. What's the best tech company?

This implies it is the one with the highest average Leetcode score. LSAT is basically an IQ plus time spent practicing test. Hey that actually sounds kind of familiar!


The obvious response is that Harvard and Yale are the best law schools, so it's not inconsistent that all the best students come from there. I don't know if that's the case, but looking at LSAT ranges at least they seem to be at the top.

I laughed really hard at that one. Being good at the LSAT has absolutely no connection to one's skills as a lawyer, and generally isn't even very predictive of performance in law school.

While good lawyers come out of Yarvard, the quality of their graduates is no different from most other law schools. The only difference is that a Yarvard Law graduate will make sure to tell you they went to Yarvard Law.


But the kind of people with the ambition to be Supreme Court litigators usually will prep for the LSAT enough to get a high score.


> the quality of their graduates is no different from most other law schools

I’ll call BS on this. Yarvard grads are going to be better than a typical law school grad, simply because a large percentage of their graduates were the top applicants to law schools across the nation. Saying otherwise would indicate other schools give a better education than these 2 schools, which would be farcical.

You got any sources for any of your claims? They come off as bitterness on your end.


https://scholar.law.colorado.edu/cgi/viewcontent.cgi?article... on the predictive power of LSAT scores.

Saying otherwise would indicate other schools give a better education than these 2 schools, which would be farcical.

Many schools give a better legal education than Yarvard. Their reputation outside of the legal industry is better than their reputation within it (except among Yarvard graduates). For example, when it comes to legal specialties (i.e., focused on specific areas of law), Yarvard only takes top ranking in constitutional law, i.e., the one area where almost all of the lawyers are graduates of Yarvard due to alumni hiring preferences among the judiciary. Unlike the general rankings, whose methodology largely consists of polling Yarvard graduates working at law schools about how they feel law schools should be ranked, the specialty rankings are based on surveys of people actually practicing in those fields. (US News includes information about its methodology in all of its rankings, so you can visit their site for more detail but you might need to pay to get the full info.)

Law firms hire Yarvard graduates because clients like to see those diplomas, but Yarvard graduates don't perform any better in practice than other lawyers. The worst lawyers I have ever met were Yarvard graduates; some of the best lawyers I have ever met went to 4-year evening programs at their local law school, and none of the best lawyers I met were Yarvard graduates though other schools in the Top14 did feature prominently in that group. (My personal experience with Yarvard grads: when I practiced trial law, I was undefeated against Yarvard graduates. When I switched to transactional practice, for several years I worked with Yarvard lawyers who couldn't negotiate their way out of a paper bag and frequently got stuck cleaning up the mess they made, which is probably where the chip comes from.)


Revisionist history did a really good episode going in depth about all this: http://revisionisthistory.com/episodes/31-puzzle-rush


This podcast is presented as if testing is an American phenomenon - but it hardly seems like it. If anything, the extreme parental backlash against testing seems more of an American phenomenon.

I've had the opportunity to apply for a few british and french things in school/academia and both required that I take a test - and were actually more test-driven than the US appeared to be, with explicit harsh cutoffs based on your test score's z-score.

Before even moving on in the Oxford application process for physics, for instance, you have to first pass a test putting yourself 1.5 z-scores over the average, then pass a series of interviews where you are timed on your ability to ask questions to you posed in person. And that's already after your A-level exams in highschool or whatever.


Barrett if confirmed...which is extremely likely...will become the only non ivy league justice.


Insofar as you believe that standardized exams are “meritocratic” the clerking process is extremely meritocratic.[1]

Most Supreme Court clerks come from about 5 schools (Yale, Harvard, Stanford, Chicago, Columbia). Getting into one of those law schools is based almost entirely on an index score combining LSAT score and GPA. Then, getting a clerkship with a “feeder” appellate judge is almost entirely a function of blind-graded exams in law school.

“Connections” matter to a degree (working with the right law professors to get good recommendations) but it’s a highly structured process.

[1] Now it’s fair to say that LSAT doesn’t measure anything important. But doing well on the LSAT and getting a good GPA doesn’t require “connections.”


Then, getting a clerkship with a “feeder” appellate judge is almost entirely a function of blind-graded exams in law school.

I dispute that assertion, given that Yarvard no longer assigns grades to law school classes. Thus, it becomes almost entirely a matter of connections, even more so than it was before when they actually did give their students grades. The only difference is that Yarvard students who would have once been prioritized for clerkships on the basis of academic success are now losing clerkship positions to fellow students with better connections than them. While I don't feel sorry for those students, it has had the knock-on effect of making it even more difficult for non-Yarvard students to get clerkships.

“Connections” matter to a degree (working with the right law professors to get good recommendations) but it’s a highly structured process.

The connection to the right law professor doesn't just matter to a degree. It's the single most important factor in determining what students will land federal judicial clerkships. The NALP conducted a study on this, and found that more than 1/3rd of federal judicial clerkship positions went to students/graduates that personally knew the judge they clerked for (generally on the basis of meeting the judges at law school functions). In contrast, state judicial clerkships were generally assigned on the basis of merit, with few if any of the clerks knowing their judges prior to clerking for them.


> and the sooner they lose their stranglehold on the judiciary the better it will be for everyone

What are you basing this on? Shouldn’t the Supreme Court and those working for them be the best legal minds in the country? No one would say “the field of physics would be better off if we had more mediocre physicists doing the important research”.


> Almost all SCOTUS clerks come from two law schools, and work for judges that went to their law schools. It is rare for a judge to select a clerk that didn't go to their own law school.

Unfortunately it creates a self-perpetuating situation. The rationale is understandable. People always prefer the familiar to the unfamiliar. But it leads to these situations.

One possible fix would be for Congress to remove the justices' right to select their own clerks, and for that selection to be moved to a third-party, like the Senate Judiciary Committee or the Justice Department.


Another, less political methodology would be to implement a merit based civil service appointment system for candidate selection.


The Supreme Court is the only branch of government that still has legitimacy — bringing it to the Senate will make it just another political football.


I feel like that is about to come to an end now that the appointments have become the biggest political events of the year. Yay home team! Everyone in the US knows that the setup is 6-3, does the fact that those numbers exist not make it already deeply political.


> the only branch of government that still has legitimacy

Legitimacy w.r.t. what? What is it that the Supreme Court has that congress is lacking?


Respect?

A basic perception of goodwill and competence?

The Supreme Court has a very narrow mission statement, and it generally executes on it well.

Congresspeople sabre rattle on TV, submit symbolic legislation with poison pills and take turns abstaining on legislation they don't want passed but their constituents do, and hide whatever they want to pass in unrelated legislation (budgets, usually). They eagerly devolve every responsibility they can to the executive branch, and seem incapable of voting against their own or the intelligence community's interests.

The only principled one seem to be single-issue legislators who couldn't tell the ass-end of a horse from its head if it was unrelated to their obsession.

During depositions they spend more time chasing soundbites and executing partisan jabs than trying to extract any information in the public interest.

Many of them seem to care more about the rest of the country than they ever could about their district or their states.

Edit:

As a punctuation, here's the late John McCain's wife saying 'we all knew', wrt Eptsein

https://www.youtube.com/watch?v=7QENiaUaoJo


> This latest development should certainly call into question the haphazard rules and procedural tricks that allot Trump the power to decisively tip the scales of justice in his favor. Pressed further, one might also ask: Why should the Supreme Court, an unelected body that is richer, whiter, and more male than the United States is, continue to have such outsized power in the lives of ordinary people

I think the arguments (that go against yours) in this article are relevant: https://www.newyorker.com/news/our-columnists/the-case-for-e...


I can understand the author's frustration with the court's decisions, and generally agree with his complaints that the court has historically served as a breaking mechanism on social progress.

But molany of the examples he cites are exactly what the Supreme Court is suposed to be doing, serving to moore the federal government's reach into daily life, and local governance by interpreting the constitution, and leveraging historical precedent.

Initial appointment is inevitably a political affair. But once the justice is in, the justice is in, and you pray that their interpretation of law is what you wanted it to be, because you're not going to remove them.

Now, you could argue that the Supreme Court will increasingly lose its legitimacy, since a filibuster is no longer enough to prevent an overtly politically motivated appointment.

You could also argue thattimes have changed, and the relatively degenerate state of state level authority means that the confirmation process should be moved to the house, rather than the senate.

But these would be relatively new criticisms and proposals that have yet to be spread and be internalized widely enough as to make the whole institution illegitimate in the public's eye.


Well no because the six number refers to that coalition that doesn't believe in legislating from the bench. It should be the case that all nine justices of the supreme court believe they are not legislators.

For example RBG has said several times that roe v wade was wrongly decided. An impartial judge would therefore believe in striking it down but she voted not to do so several times. Unfortunately many justices still believe that their job is not solely to interpret laws established via democratic processes.


Congress has no such power.


https://en.m.wikipedia.org/wiki/Judiciary_Act_of_1789

https://en.m.wikipedia.org/wiki/Judiciary_Act_of_1869

Congress has already established the composition and the procedures of the court. Of course it has that power.


No. It does not. The separation of powers would make such a law unconstitutional. The judiciary would never abide by it. And good luck to Congress trying to enforce it. Never in the history of the republic has one branch of government been able to dictate in such granularity who may be hired by another branch.


You're underestimating how much power Congress legitimately has over the rest of the government, when they choose to exercise it.

All money spent by the federal government in all three branches, including on judicial clerk compensation salaries, is determined by Congressional authorization and congressional statutes regarding employment and compensation. Congressional statute law heavily regulates hiring throughout the executive branch, despite that being a separate branch of government from Congress. There's no reason the judiciary is any different.

What's more, while the procedural rules of the federal courts are mostly set by the federal courts themselves, this is done under the authority of an act of Congress, which has been amended several times both to increase and reduce the courts' self-regulatory authority. As for the Federal Rules of Evidence, Congress refused to allow the version of those which the Supreme Court originally approved to go into affect, and then they later passed a substantially altered version as an Act of Congress.

The Constitution itself makes explicit Congress's ability to regulate the Supreme Court's appellate jurisdiction (which applies to almost all of its docket) and even to reduce the scope of that jurisdiction. And it has pretty plenary power to add, remove, and restructure the inferior federal courts, aside from whatever tenure protections apply to individual judges who have not been impeached by the House and removed from office by the Senate.

And, as others have said, the Senate even individually approves federal judges as per its constitutional mandate under the appointments clause. This is certainly not a separation of powers violation.


I'm not underestimating anything. You're outside your depth here.

Congress can ordain and establish inferior courts, and can regulate the appellate jurisdiction of the Supreme Court. However, it cannot regulate much of the judiciary outside that. For one, it cannot expand the Supreme Court's original jurisdiction. Marbury. Nor can it dictate how the court applies the law. Klein. Congress's power over the federal judiciary is constrained and there is no basis in the text of the Constitution or in any case law to support your position.


Marbury is nothing more than a power-grab by the judiciary that we have all decided to abide by, for the moment. The judiciary has no power whatsoever other than that which comes from its perceived legitimacy; legitimacy which has been heavily damaged over the past 20 years and which is dangling by a thread at the moment. There is really nothing stopping Congress from slapping back the Supremes other than convention, and I suspect that this is going to be ending soon -- Congress can cut the Supreme Court back to nothing but original jurisdiction and then create a new court for constitutional appeals to bypass them completely. Quoting case law won't help them and no matter what they may claim there is nothing nine politicians in black robes can do about it if the other two branches decide that this is how things are going to work going forward.


No, Congress cannot just create a shadow Supreme Court within our Constitutional framework. And if you're talking about disregarding the Constitution, then your point is meaningless.


The Constitution doesn't directly say the Supreme Court has a power of judicial review that can overturn laws. It's just that the Supreme Court interprets it that way, and we currently go along with that. The person who proposed a separate top court for constitutional appeals (not me) was making more of a realpolitik point than a constitutional one.

However, I think a variation of the idea would be constitutional: within the Supreme Court, Congress creates two divisions for purposes of appellate jurisdiction cases (they would stay unified for original jurisdiction cases to avoid a constitutional problem). Justices would be assigned to only one or the other, no overlap. One division handles constitutional appeals, one division handles other cases.

Congress could also remove the appellate jurisdiction of the court to hear claims that laws are unconstitutional, leaving the only appellate jurisdiction as claims that officials are acting illegally or unconstitutionally or disputes of lower-level decisions as incorrect.

I'm not saying this is necessary good policy, but it would be constitutional.


> The Constitution doesn't directly say the Supreme Court has a power of judicial review

Yes, it does. Jurisdiction literally means the ability to say what the law is. There is no plausible definition of appellate jurisdiction in the Anglo-American legal tradition that would not involve the power and duty to reconcile incompatible sources of law.

> Congress could also remove the appellate jurisdiction of the court to hear claims that laws are unconstitutional

No, it cannot. First, the power to make "exceptions" does not imply the ability to completely remove power. Second, whatever power Congress had under Article III was limited by later amendments, e.g., it cannot remove jurisdiction in a way that results in an impingement on the right to due process under the Fifth Amendment. There is nothing in the text of the Constitution nor in any case law that would support your implicit contention that Article III is somehow immune to being subject to the amendments process.

Third, although Klein has been a bit disfavored lately, it was reaffirmed in Patchak only a couple years ago. Some commentators focus on the plurality opinion while ignoring the fact that they're only a plurality and not the dissent because of Ginsburg's and Sotomayor's concurrence. That opinion interpreted Congress's intent generously and reasoned that Congress merely amended its waiver of sovereign immunity rather than dictated a result in a particular case. Of note, the concurring opinion explicitly agreed in principle with the "dissent," and they still ruled substantively on the merits notwithstanding Congress's attempt to strip jurisdiction.

If you'd like to continue this, please read Chemerinsky's excellent hornbook on federal jurisdiction first. And, you know, maybe go to law school.


Disregarding what the Supreme Court says the Constitution says != disregarding the Constitution. Important distinction that will become more important in the future.


Congress certainly can't regulate the substance of how the courts apply the law, that's absolutely true. But they can regulate the procedure of how courts apply the law, and as per the examples I gave, they have often done so, including against the Supreme Court's wishes. (The two examples I gave are the Rules Enabling Act and its amendments, controlling how the Supreme Court manages the federal rules for both criminal and civil procedure, and the handling of the Federal Rules of Evidence.)

I'm not disagreeing with the other examples you gave, including about original jurisdiction - clearly separation of powers and the constitutional structure are both real and binding. But equally, those concerns don't prevent the kind of personnel regulation we're discussing.


Judges would be pretty outraged over meddling with their personal fiefdoms, no doubt. And modern congress is pretty spineless in general.

But the power and precedent exists — see the Pendleton Civil Service Act. Even in these times, the federal bureaucracy is a significant barrier to systematic corruption and patronage.


A claim with well over 1000 exceptions: https://en.wikipedia.org/wiki/List_of_positions_filled_by_pr...


Apples and oranges. Senate confirmation is not the same thing as a law prohibiting the hiring of people with certain experience. And it is certainly not the same as usurping the hiring decision entirely.


A careful reading of the Constitution will reveal that Congress is more powerful than the other two branches — and rightfully so. Only Congress can make laws, and can do so with or without the president's consent. Congress can remove a president or a Supreme Court justice, but only Congress can expel a member.


"In a 9-0 decision, SCOTUS has struck down as unconstitutional the law giving Senate Judiciary power over hiring clerks."

More seriously, I'm not convinced moving this to a Senate subcommittee would lend any more legitimacy to the system. As evidence I present what Senate Republicans did to stonewall Obama appointees at the end of his last term so that McConnell et all could push through dozens of 30 year old reactionary freaks to lifetime appointments.


"In a 54-46 vote the Senate approved the bill from the House which cut the funding of the Supreme Court to minimal levels and removed any funding at all for hiring clerks."

Is John Roberts going to whip out his checkbook to cover payroll?


I feel like we're getting a bit silly at this point. But to continue that train of though: SCOTUS clerks are now unpaid, further ensuring that only those already wealthy can afford to take the position.


> what Senate Republicans did

Party politics has become an increasingly tit for tat series of one side violating a norm, followed by the other side one-upping them.

It's basically a war of attrition at this point.

Republicans are going to push through a new court appointee, largely "because fuck you, that's why."

If Democrats win control of either the Presidency or the Senate, expect them to do something similar. Also simply "because fuck you."

At some point it's going to all boil over, and who knows where that will end up.


This is literally the definition of iterated prisoner’s dilemma. The way to break the cycle and see more cooperation is to keep 1 round of memory. Put another way, acknowledge that norm breaking (defection) on round X was caused by norm breaking on round X-1 and allow it (or try to scale it back to an equivalent exception). What doesn’t work is ignoring all the times you defected and then trying to get in one last escalated defection because “fuck you, that’s why”

Unfortunately, that requires adults who can work together and a public that can deal with nuance.


> The way to break the cycle and see more cooperation is to keep 1 round of memory.

And betray on the last round, because that can only help you.

But since that means everyone should betray on the last round, everyone should also betray on the second last round since that won't effect your opponents behavior next round anyways (they're already going to betray).

And the third from last round.

And fourth...

And... actually just always betray.

Simple computer algorithms do not fully capture the real world. And the simple algorithm that happens to have won a single tournament in which players could not see what other players were doing and adjust their strategy is not going to translate well to the real world.


Norms are by mutual consent.

So literally nothing like the prisoner's dilemma, iterated or otherwise.


Bullshit, it just takes one to walk away from the pissing contest. The Republicans are actively contesting, the Democrats are not yet and could still choose to not engage in the pissing contest.


Okay, it may well be the case that Harvard and Yale aren't the best law schools or whatever; but there aren't a lot of objective measures the adjudicate the question (bar passage rate being high-90s for most, say, t25 law schools; law review productivity and moot results being confounded by the same problems you mentioned; subsequent postings being confounded by the same problems you mentioned; pre-law school stats like undergrad GPA and LSAT being a bad measure) -- so at the very least let me stipulate that there is a wide conventional wisdom that Harvard and Yale are among the best law schools in the country and that the kind of students who get appellate and SCOTUS clerkships are among the best students at those schools, even granted they are also wealthy, connected, and some of branding is a shell game.


Not to be rude, but I read this twice and I’m not sure you said anything to contradict or expand on the parent?


My interpretation is that it is possible for clerkships to both be relatively meritocratic and also a pissing contest between Harvard and Yale because (shocker) the most talented law students do tend to go to those schools.


Relative to what?


Your comment is not well evidenced to support a claim like “they’re the absolute best law students...” that’s the first thought in your head maybe. How’d it get there?

When the only yardstick for such a claim is “these people believe so” and we can see government agents handing out sacks of cash for no reason to their buddies, and know social media is being used to manipulate markets with no fraud legal ramifications, etc, etc... how much more willful ignorance does the legal profession believe it’s going to able to extract as the public record is on everyone’s phone? As the next generation is raised even more aware of the incongruity and bullshit?

I’d offer this question to economists as well.

Observing normal human behavior and applying a rhetorical framework, measured by artificially constrained framework of math (for consistency) is fine. Believing “that’s the way” when we could literally engineer a normalized logistical distribution system, but don’t thanks to the immoral constraints on economic behavior using correct but fuzzy for a reason math, and rhetorical legal proselytizing how much longer do we all nod and smile?


You're largely correct, but I am not so sure you can separate "best law students in the country" from access. Attending an elite law school is one of the most straightforward ways to advance through access in the country. In particular, because many judges are nominated, attending these schools and joining these social groups is more or less required to advance through the federal judiciary.


Nicely worded and dissected. When I saw the headline, I thought classic example of begging the question; you articulated it much more eloquently


Whether your explanation is true or not, this is obscene.

Personally, I'm more and more glad it's all coming down. It was unfixable anyway.


> Former clerks were 16 percentage points more likely to attract the votes of the justice for whom they had worked

One question I immediately have is that are they controlling for the side that the clerk argues on behalf of? I would expect clerks for "liberal" justices would probably argue on behalf of the liberal side in a SCOTUS case, and likewise for conservative leaning clerks and justices.

In other words: could a liberal side of an argument (say: pro-gay-marriage) hire a former conservative-justice clerk and be more likely to have a conservative justice rule for the liberal argument?


Judicial methodology counts for something - see Gorsuch's recent ruling on sex discrimination. My understanding is clerks are generally so used to thinking like the justice they clerked for that they could tease out arguments which would be persuasive. Gorsuch may be socially conservative but he's obviously very susceptible to "originalist" arguments - if you want his vote, you need to speak to the text of the statute.


Not sure why this comment was marked dead, so I vouched. I'm assuming an overly sensitive filter nuking comments because your account is new and the comment uses words predictive of politics?

My sense, personally, is that mostly that people have the causality on legal formalism reversed: originalism is not a theory that leads to conclusions, it's a rationalization used to support conclusions already held.

But at the very least what you're saying is something worth thinking about. Given that Oyez makes every supreme court oral argument public and the filings are clearly public, it seems like there probably would be a case for any number of text learning methods to try to identify formalist style in legal arguments for an analysis like this.


>"My sense, personally, is that mostly that people have the causality on legal formalism reversed: originalism is not a theory that leads to conclusions, it's a rationalization used to support conclusions already held."

I never understood this logic, because it's inconsistent with how judges & justices like Scalia often found in favor of litigants he despised, because they had a strong originalist argument. Breyer on the other hand, with his 57-factor balancing tests, always finds a way to find in favor of his favored side.


it's inconsistent with how judges & justices like Scalia often found in favor of litigants he despised

That doesn't describe Scalia at all. Scalia applied originalism when it suited him, and abandoned it when it interfered with his ideological goals.

Scalia like most SCOTUS justices, cared little for the actual litigants, since they were largely irrelevant to the matters at hand other than as vessels for bringing the matter to court. Due to the length of time it takes cases to get to the Supreme Court, many of the named litigants aren't even the original parties, the original parties having long since died or left office.


The justices definitely think about the litigants, and similarly situated parties. Sotomayor and Ginsburg regularly made litigant-related emotional appeals (usually near the end of oral argument), notably in the healthcare and DAPA/DACA cases. I do not recall Scalia making emotional appeals, but he was sympathetic to the administrative agencies (in a manner which I see as inconsistent with most of his other jurisprudence, and which he later drew back from).


Yes, they think about the litigants during oral arguments, and in dicta (side remarks in an opinion) where it doesn't matter.

The facts of the litigants don't matter to the legal reasoning, because SCOTUS decides matters of law, not fact.


Well, the Supreme Court is actually the court of first instance for some types of cases, and decides both matters for those cases. It can also decide matters of fact in some cases, for various reasons.

Those situations aside, I think Sotomayor and Ginsburg's emotional appeals in oral argument are representative of how they are actually deciding those cases (i.e. for reasons related to the specifics of litigants), and that the written opinions may simply be a legal veneer over their true motives.


Well, the Supreme Court is actually the court of first instance for some types of cases, and decides both matters for those cases

It's called "original jurisdiction" and for SCOTUS their scope of original jurisdiction is limited to cases between the states or involving ambassadors or other "public ministers." As a portion of SCOTUS' load, such cases are such a small fraction that it can be decades between such cases.

SCOTUS otherwise does not decide matters of fact because it's not within their jurisdiction to do so as an appellate court. They can overturn lower-court rulings on the facts, but in doing so must remand to the lower courts for new rulings on the facts. Additionally, while they can take facts into account in their rulings, such facts must be part of the record established in the lower courts (i.e., the trial courts), unless it is a case of original jurisdiction for SCOTUS (meaning state vs state cases).


I think Breyer is pretty honest at least that his goal is equity rather than some abstract philosophy. Unfortunately this does tend to lead to balancing tests rather than bright line rules.

Conversely, it could be said Scalia twisted the idea of "originalist" to suit his political ends. Heller in particular is a very consequential ruling that basically invented a new right under the second amendment from whole cloth. When originalists complain about "activist judges" it can seem intellectually dishonest.

There's also a good question about how originalists can even support Marbury v Madison and the concept of judicial supremacy in the first place, since it doesn't originate in any law. Right now they support it because they have durable power in the courts.


Heller is an interesting one, though I disagree with your statement that it was invented from whole cloth. I see Heller as a good example of constitutional consistency. Over time, the courts have developed a range of standards, each of which applies to one or two amendments. I hope Heller is the first step in a rationalization of constitutional law, as there is no reason for certain rights to be more or less protected than others.

As to Marbury v. Madison, even (some) originalists believe in stare decisis, though it is a controversial topic.


I think this has to do with the words 'theory', 'conclusion' and 'rationalization'.

In natural sciences, a theory is a set of hypotheses, along with their logical consequences with the aid of auxiliary theories. This is not what judges to. They have a set of meta-principles(originalism, textualism, precedent, etc) and heuristics (for reasonableness, fairness, etc). They use them to come at a decision they favor. The difference between a Breyer and a Scalia is the way they assign weights to these heuristics and meta-principles to favor their decisions.


I think you make a good point about justices existing along a spectrum of adherence to methodologies, but I think some judges and justices also choose to avoid the main issue when the 'heuristics' are at odds with their principles. The most obvious example of a serial-parrier is the current chief.


Richard Posner is very upfront: he first decides, then finds rationale for that decision. Of course, the judge's role is to pick one decision among a range of possible decisions. As long as there is a section of public who supports that decision, all rationale judges provide make it appear non-arbitrary. This kind of explains why the same court ruled in opposing ways wrt segregation, etc.


No thanks, I'd rather the plain words of a governing document be interpreted more like a living organism that evolves with the times. That way I can get exactly what I want right now without having to convince anyone else beyond 5 old people to vote for it.


I assume this is sarcasm?


It's actually textualism not originalism. Originalism considers the original lawmakers' intent whereas textualism only considers the current meaning of the words of the statute and ignores intent.

In other words, originalism considers unintended consequences to be outside the scope of the law, whereas textualism considers them to be within scope.


I think you’re confusing textualism for originalism. Textualism means the wording of the statute is paramount. Originalism means you supplement the text with a historical analysis of the people who wrote it and try to interpret the words in the way the original writer intended.


Textualist in Gorsuch’s case, his position in the case you cited was textualist, not originalist. Clarence Thomas would be a better example of an originalist on the court.


Yes, the article does adjust for most of the confounders you'd expect.

https://journals.sagepub.com/doi/pdf/10.1177/106591292094813...


The second paper they link with “similar findings” appears to just say that experienced attorneys win more haha.

First paper does seem to substantiate article.


Supreme Court cases are usually over arcane technicalities of law. Knowing how to craft an argument towards the interest of one of the judges matters. Not only for arguing the case, but for getting the case on the docket.

Conservative vs liberal is less important IMO.


I know several former clerks. Their own political leanings frequently do not align with the justice the clerked for, though I assume they tend to know what types of arguments will be more likely to sway that particular justice.


> One question I immediately have is that are they controlling for the side that the clerk argues on behalf of?

This should happen automatically without the authors needing to handle anything specially, as long as you believe the court is arranged into sides that vote in blocs.

(And if you don't believe that, the question doesn't appear to make a lot of sense?)


Part of what’s going on here is that clerks make much less money than if they had gone straight to firms. To be induced to apply to clerk, some law students need to know that there’s a big pay day at the end. Also consider that SCOTUS clerks need to spend at least a year clerking for a lower court judge beforehand, again at pay that is way under what they’d be making in a firm.

Of course, some clerks don’t need the monetary motivation because clerking itself is reward enough, but for many law students it only makes sense if they can recapture earnings through a clerkship bonus.

Source: I’m a former lawyer and dated a lawyer who clerked for an appellate court and interviewed for a SCOTUS clerkship.


Wouldn’t that be a problem for the court, not firms? It’s the court’s problem if they can’t hire clerks.

Firms are indirectly solving the court’s problem but it doesn’t explain why they do.


It would become a problem for the courts, yes. But it doesn't because firms are happy to pay for clerkship experience. It is largely a filter and signaling device (both to the firm and to potential clients — clerkships are listed on the bios of even very senior lawyers). But in the case of appellate clerkships, there may be some networking/insight value as well.


This explains why law students apply to clerkships, not why firms pay bonuses for former clerks.


Not really. Firms want clerkships to be a valid signaling device for excellence. If there were no bonuses, then clerkships would be seen as appealing primarily to students who are more well-off, because if you have $200k in loans you don't want to take a clerkship that pays 1/3 of starting salaries firms (and less if you include bonuses).

One effect of having clerkship bonuses is that clerkships become economically viable for anyone, so long as you can survive on your clerkship salary for 1-4 years.


I’m sure the finding that former clerks win more is relevant - but are they controlling for the caliber of attorney? The clerks as a whole are an extremely hard working and talented subset of the legal industry and I would expect their results to also show favorably in almost any context later in their careers. It’s hard to overstate how competitive getting a scotus clerkship is.


Ok. Read the paper, they do attempt to account for this in their confounding analysis but don’t control for it.

1. The lift is specifically strong for the judge they clerked for, and not for all of the judges 2. Federal clerks (also wildly competitive roles even if a bit less fancy) win about as much as scotus clerks from their analysis of another other data set, but don’t show some crazy single justice lift

Interesting stuff


SCOTUS clerks mostly end up doing appellate work in private practice, and a lot tend to leave after a few years to pursue academic careers.

A law firm can tout that it has SCOTUS clerks within its ranks to show off to clients. Since there's only ~35 SCOTUS clerks each year, firms vying for them are willing to pay extra.


> What are they buying?

part of the system?

In their profession they are equipt with a lot of power and influence because of the money and the instituiton they inhabit. They do eye watering hard work but at the same time many are questioning how the system works when it is unpopular or fails.


Former SCOTUS Clerks. Makes it all sound much less like bribing current clerks.


Prestige to justify eye watering hourly rates.


> After she graduated from law school, I wrote a one-line letter of recommendation for her to Justice Antonin Scalia: “Amy Coney is the best student I ever had.” He was wise to hire her as a clerk.

> I was teaching a First Amendment class at Notre Dame Law School. She was a student, just a face in the crowd. On the final exam, someone — the bluebooks were anonymous — had written an answer so impressive that I rushed to share it with one of my colleagues. This student, I said, gave a response to my own question much better than the one I had come up with myself. That student was Amy Coney.

-John Garvey



Can't we be happy for some people to be financially rewarded for legal / intellectual achievement in public service of justice? Rather than selling things that contribute to the decline of humanity?


tl;dr

They are buying prestige for higher paying customers who think (rightly or not) that knowing the inner workings of the supreme court increases the chance a successful case.


I'm getting a registration wall.



Disable javascript.


who again here said engineering work pays well?


Law salaries are very bimodal. Effectively you either make $40k or $160k. The average career of the lower salary person is pretty long and can be soul crushing, making $60-75k after a decade or two of public defender or prosecutorial work. The average career of the $160k person is to work for 3-6 years ratcheting up pay to $220k and then getting pushed out into non legal work. Long tail for the former is to jump to private practice as an of counsel or partner and make $200-400k in a smaller to mid sized firm, and similar in the case of the latter, moving over to of counsel and keep relatively the higher level of pay or move up to partner and make significantly more.

It's not like engineer salaries where there's some normal distribution. And of it were, you're comparing people who have the fancy titles at large companies (Principal Eng at Google I think?) to the long tail of law grads.

For reference, the low end of salaries tends to be public defender, local/state prosecutors, insurance defense / document review, the higher end is almost all large law firms, and the middle that makes up only a small percentage of grads are well-for-the-region paying small to medium firms and federal government. Arguably for longevity for law for salary and potential the best option is federal government law where someone makes $75k to start and ratchets up to $165k over 20 years.


Engineering is soul crushing too, not everyone makes decent salaries in the bay area or elsewhere, engineers have zero social status, unlike lawyers. There is no "normal distribution". And don't forget that as a lawyer, you don't face the type of age discrimination that engineers deal with, and you don't have to "relearn" your tools every few years because something else is now in fashion. Law stays mostly what it is, and the tools don't change. Obviously you have to keep "up to date" with the law, but that's it.


This is accurate. I started at $160k at a large law firm, then left to work for the government. Ten years later I don't make as much as when I left the firm, but I'm much happier.


As of a few years ago, the starting big law salary has moved up to $190k from $160k. Otherwise this comment is correct.


No-one in engineering fresh out of school starts at $190K as far as I know, not even in the bay area. So there you go.


You're comparing the top .01% of law grads to a mental ballpark of the "average" engineer salary.


Exactly. IIRC there are about 90k law school graduates a year and just under 40 SCOTUS clerks a year. Do the math and you get that these clerks are the top .04% of the new lawyers each year. I’ll bet the top 0.04% of engineers with a couple years experience can definitely make similar money.


The top 0.04% engineers are probably multi-millionaires. But that doesn't detract from the fact that Lawyer together with Banker is quite a good profession financially speaking.


As an engineer, to become a multi-millionaire, you need to get "lucky" by your small share of equity suddenly being worth a lot because of an acquisition or IPO. If that doesn't happen, you're not going to be a multi-millionaire. As a lawyer, you can easily become a multi-millionaire simply by doing your job at a respected law firm, and that doesn't require an acquisition or IPO event.


The top few fractions of a percent of engineers can become at least a principal engineer at a FAANG and be getting well over 500k a year in comp, similar to the numbers being thrown around for these clerks. That was mainly my point, not talking about startup exits.


In general, I would not say that Lawyer is a good profession due to the high degree of variance. The top 10% land big law positions starting ~180k, the bottom 10% of grad are unemployed, and most of the rest make about 50-60K/yr and have 200k of debt

https://data.lawschooltransparency.com/jobs/salaries/


No-one is saying they are not good, but I've read the top-level comment as implying they are better than software engineering, and after reading responses in the thread I'm not convinced that this is the case.


This is absolutely correct. Most people who graduate from law school and pass the bar go in to middling salaried jobs. If they even practice law at all. Most entry level legal jobs pay very little compared to the top tier gigs. Said from the perspective of a lawyer ten-years into practicing.


The selection funnel for these folks is utterly insane. Arguably some of the smartest individuals at what they do that have existed in human history. Not a fair comparison to average engineers for sure.


Hi, former Federal Court of Appeals clerk here. Posting partially because I didn't quite make it to SCOTUS clerk (and am a little bitter), but also partially because I am a subject matter expert in this area. I will say that the full funnel from high school -> SCOTUS clerk requires nothing resembling being one of the "smartest individuals at what they do that have existed in human history." This is perhaps one of the biggest overstatements I have ever seen on Hacker News. While it does certainly require some relatively high-ish bar of aptitude and intelligence, it is in large part more related to one's ability to grind hard at work and have a huge amount of luck and connections gained from that luck/hard grinding.


“I returned, and saw under the sun, that the race is not to the swift, not the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all.”


Thank you for sharing that insight, coathrowaway.

From your experience of nearly making it to SCOTUS clerk, can you, in retrospect, say what was required to make it? More harder grinding? Different connections? Luck?

Are there any shortcuts?


Hi, thanks for asking. On average it's required to go to a top law school, get top grades, get on the law review, and to get a senior position on the law review in one's third year. These things aren't really a function of rote intelligence, but a lot of grinding and luck, especially with respect to grades where things at most schools are on a curve where one person's A means another person has to get a B, even if they had similar, A-quality work.

With those things as a given, in the end the filter is who is willing to go to bat for you (and a lot of luck). The usual process is to get to know and impress a well known law professor. Make sure they know who you are. They will go to bat for you to get into a clerkship with a well known Federal District Court judge. Impress that judge and after a year, they will go to bat for you to get a clerkship for a well known COA justice/Circuit, who will then hopefully feed into a SCOTUS clerkship.

To give a concrete example: One might do well at Stanford Law School and impress some professors who get to know you and write recommendation letters for you to apply to clerkships through the OSCAR system. One is sufficiently impressed with you that they're willing to give their friend and former clerkship boss Judge Alsup at the Northern District of California a call and recommend you more personally. Judge Alsup accepts you as a federal court clerk and you do well, working very hard. You decide to apply to COA clerkships the following year. Judge Alsup is sufficiently impressed with you that they're willing to give their friend Merrick Garland (to use someone whose name you've heard, but who is also a well known SCOTUS feeder justice) a call. You then impress Justice Garland after a year and they, along with Judge Alsup and your professor who just happened to clerk for Justice Breyer, are all willing to support your application to be a SCOTUS clerk for Justice Breyer. They all put in personal recommendations with Justice Breyer, who takes them seriously because they're serious, well known people with great reputations. With a lot of luck, even with these connections, you can get accepted to be a SCOTUS clerk.

So I would argue once you have the given grades, law school, and law review membership, it really is about connections. But not in the "my father used to golf with that justice" sort of connections, more trusted connections because you've built a relationship with the connection through hard work and a willingness to work nearly nonstop. But even more importantly, someone who has connections to people who have connections, who have connections to SCOTUS justices. However, even the absolutely best situated candidates don't have a more than average shot at success at their SCOTUS clerkship application. But this isn't a one way street. People typically only recommend you if you have impressed them and they think you'll do well, because then the next node will take their recommendation again in the future, and it's a sought after position to be able to say Judge Alsup often hires people you recommend, and it's sought after for Judge Alsup to be able to say Merrick Garland takes his recommendations on who to hire, and so on.


So, within a trust network, persistent hard work and intelligence may propel a candidate through the funnel. Or may not, because the funnel is only so big.

How do ideology and jurisprudence philosophy factor into this system, for an aspiring clerk?


"This is perhaps one of the biggest overstatements I have ever seen on Hacker News" - Ouch! - now that is a strong statement!

Curious about your view on a qualified take.

By "some of the smartest individuals..." - I mean that there is a rare bar for work and aptitude here in the last ~3 decades if you look at a set of technocrats or thinkers historically.

Right now population * access to quality nutrition * access to early childhood and later education * interested in law school in the US produces a funnel of thinkers (90k graduates/y with ~19 years education) that is larger than almost any that has existed previously.

As some points of reference - some estimates put Rome at its peak at ~70mm citizens, the Tang Dynasty at ~80mm - both with access to fewer of the above conditions for the bulk of citizens. The Qing dynasty can hang on population in this thought experiment at 450mm, but the ratio of nutrition and education access was considerably lower.

If you compare SCOTUS clerks to actual luminaries like Gauss, they compare very unfavorably, but as a group I do feel that they are "some of the smartest individuals at what they do" that we've seen.

Is it possible that your high accomplishment in the field has given you an overly pessimistic view of the skillset required by your peers?

Your insight on the topic is super interesting - my background is as someone who was admitted to an elite law school and chose to follow their programming hobby instead - this part "However, even the absolutely best situated candidates don't have a more than average shot at success at their SCOTUS clerkship application." - makes me think that while there is a lot of networking involved here, the attainment bar is also - incredibly, unreasonably high - to be within striking distance, even if the last mile is networking, grind, and luck.


An absurd thought experiment that could make for maybe the driest Neal Stephenson book yet @coatthrowaway.

Take the SCOTUS clerks from the last 10y. Pick a set of the same size of bureaucrats in one role from any time and place in history. Set them loose on a well translated set of each others' laws with a series of cases covering edges in the law to provide opinions on.

Who creates better rulings?

Do you think there is a set that does a better job at switcheroo2020? If not - does that mean that recent clerks meet the best at what they do criteria?

If you provide me the bureaucrats I'll: 1. Be super amused. 2. Happily go read about them and roll back my bad take.

The easiest target I'd go for is - current federal judges. Maybe that sinks me by itself here - in spirit I don't think so because the funnel overlaps heavily - and the theory is that the current funnel creates a historically rare result.


> the smartest individuals at what they do that have existed in human history

How do you measure that?


Good question - maybe a hasty take. I'll try to defend it ;)

Dropped a line in above. I'm assuming a normal distribution of intelligence from a nature perspective that has not changed much in the last 2k years, and then on top of that an enormous nurture influence.

Right now there are a lot more people, with a lot more access to reading and writing education, and food - than there have been in the past. 90k legal graduates/y is a huge output. If you assume the filters that put folks into clerkship are a mix of meritocracy and then some elbow-rubbing noise - the end outcome should still be extremely talented compared to other groups of thinkers in the past. This does also imply that the same should be true for other current intellectual institutions that filter from large pools.

The assumption breaks down to the extent the filters aren't meritocratic. I'm not super qualified to speak to that - and there's at least one qualified opinion above expressing that the mix maybe leans more towards work and networking than ability - so maybe I'm wrong here.


Well, literacy and education, as nice as they are, don’t actually increase intelligence, do they?

I think I get what you are saying if you mean that there are a lot of law grads who have knowledge and capabilities that distinguish them greatly from people who haven’t learnt the law. All the more so for the people who come top of their class.

If I was in the presence of a top legal mind in a court of law, with much to lose or gain, I’m sure I’d be in awe. I’d certainly be prepared to suppress my own volition and be lead by their learned advice.

Outside of a court of law, I don’t think I’d have the same reverence for such a person’s vocational skills. They have knowledge of a system, and their intelligence should enable them to obtain desirable outcomes from that system. Outside of the system, I’d expect them to be more mortal.


For sure - how to resolve the statement is almost entirely about definitions here.

I said something that would reasonably be interpreted way more broadly than what I meant, and was rightfully called out for it by a few folks.

My intent was to in a pithy way support how it's maybe not a great comparison to pull the top of one field and compare to the median of another when discussing compensation.

Bad take on my part in support.


I say so.

Go work for Jane Street if you don't believe me.

That's the nearest equivalent to being a former Supreme Court clerk I could think of.

In either profession, it's nice up at the top.


It does pay well, objectively speaking. I share this every opportunity I can: https://levels.fyi.

Even if you leave the sphere of big public tech companies and unicorns on the coasts, software engineering typically pays well above the median job in each area of the country.




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