On June 29, 2006, the Supreme Court ended its 2005-2006 term. The Justices employed 37 law clerks this past term, 13 of whom were women. During the 2004-05 term, 15 of 35 law clerks were women. Initial reports for the upcoming 2006-2007 term appear to indicate that the number of women will again drop. A recent article by Tony Mauro entitled “High Court Clerks: Still White, Still Male” is available here.
-Posted by Bridget Crawford
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Until time proves otherwise, I am inclined to accept Justice Breyer’s statement that this year’s dip in the number of female clerks is probably a random variation. I therefore have been much more troubled by the response to this story than to the story itself. Two things in particular disturb me. First, several commentators have cited this as yet another example of young women “opting out” of high pressure, high profile jobs. Oh really? Go tell the thousands of women starting this fall as first year associates in large law firms across the country that they are making any such choice. Are we really to believe these women would not have preferred spending the year as a Supreme Court Clerk? Second, the ubiquitous chatter about how women aren’t graduating at the top of the top law schools, aren’t the EIC’s of the top law reviews, etc., implicitly accepts that there is some objective standard of “merit” that these women aren’t meeting. Again, really? Look at Brian Leiter’s data of Supreme Court Clerkship Placements. Were the three clerks who graduated at or near the top of their class from the University of Kansas more objectively qualified than the woman who graduated 10th in her class from Harvard? What about the three BYU clerks – were they more qualified than someone who was an articles editor rather than an EIC at Harvard? Maybe, maybe not (I’m all in favor of increasing the range of schools clerks come from) but let’s not pretend that there is some straightforward way of defining merit in this selection process.