Clerks for Hire: The Supreme Court recruiting race
Law clerks return to the building after flanking the casket of Justice Sandra Day O'Connor at the U.S. Supreme Court building Dec. 18 in Washington, D.C. (Photo by Bonnie Jo Mount/The Washington Post)
Last spring, as the Supreme Court wrapped up oral arguments for what was shaping up to be a blockbuster term, the law firm Jones Day invited a group of law clerks to dinner at Del Mar, an upscale restaurant on the D.C. waterfront.
At the dinner, the law clerks traded small talk with Jones Day lawyers over the restaurant’s Spanish seafood cuisine and bottles of wine. While jovial on its face, the Monday-night dinner was like other recruiting events in Washington: the firm and its prospective hires were vetting each other.
So goes the courtship of Supreme Court law clerks by Washington’s top law firms. Only around three dozen law clerks work for the justices during each one-year term, which means these lawyers—and their unparalleled knowledge of the court—are in incredibly high demand. Jones Day, the leader in the race to recruit and hire as many clerks as possible, announced last month that it snagged eight law clerks, all of whom worked for conservative justices during the term that began in October 2022.
But they don’t come cheap.
During the courting process, the city’s top law firms treat this elite group of lawyers to perks like an expensive dinner at the Wharf or Penn Quarter or a trip to a baseball game or spa. The recruitment is so competitive that signing bonuses for Supreme Court law clerks have reached a new high—$500,000, according to a spokeswoman for law firm Gibson, Dunn & Crutcher. Such a sum far exceeds the salaries paid to the justices—the clerks’ former bosses—who are paid slightly less than $300,000 a year.
The bonuses—alongside annual starting salaries of more than $200,000, which alone are nearly triple Americans’ median household income—are the product of a decadeslong competition among elite law firms seeking any advantage they can find in arguing high-profile cases before the Supreme Court. They view the clerks’ experience and knowledge of the court as profitable assets that attract clients in a highly specialized sector of the law, and they see clerkships as effective filtering devices in identifying promising hires, according to interviews with former Supreme Court clerks, lawyers and experts.
In this way, the clerks are like many former aides across Washington—whether on Capitol Hill, at regulatory agencies or in the White House—whom law firms value because of their time spent in proximity to power and relationships with influential officials.
“Their knowledge about how the court operates is invaluable,” Neal Katyal, a former acting U.S. solicitor general who co-leads Hogan Lovells’s appellate practice, said of Supreme Court clerks. “Our clients love them.”
But some critics, including at least one former justice and some former clerks, have questioned whether the clerks are worth these enormous signing bonuses—which reached six figures in the early 2000s—and whether spending millions of dollars is sustainable.
“I was quite surprised with $75,000. I was shocked with $150,000,” said Harvard Law School professor Richard Lazarus, who studies the specialization of the Supreme Court bar. “It just boggles my mind.”
The half-million-dollar bonuses come as many other aspects of the court are under scrutiny. The public increasingly sees the court as a partisan institution rather than impartial arbiters of justice, polls show. And under pressure after news reports documented benefits like lavish trips that Clarence Thomas and Samuel A. Alito Jr. received from wealthy members of the conservative legal world, the justices released an ethics code for themselves in November.
“The court has taken such a beating in terms of the public perception of the court—some of the beating is self-inflicted—but this isn’t good for the court,” Todd C. Peppers, a professor at Roanoke College who has written extensively about Supreme Court law clerks, said of the bonuses.
The beginning of the bidding war
The bidding war over Supreme Court law clerks spans decades and coincides with the rise of lawyers who specialize in arguing before the high court. In 1985, Rex E. Lee, the solicitor general under President Ronald Reagan, resigned to become a partner at Sidley & Austin, a Chicago-based law firm. There, Lee and Carter G. Phillips created one of the first Supreme Court and appellate practices.
To attract more business clients and bolster the practice in the long run, Phillips hired from the pool of young lawyers who were nearing the end of their Supreme Court clerkships. Rival firms like Mayer, Brown & Platt—now known as Mayer Brown—followed suit, increasing the demand for clerks.
Phillips said in an interview that he realized convincing clerks to work in Washington for a law firm headquartered outside of the city was a “tough sell.” So, in 1987, he offered one of the first Supreme Court signing bonuses as a sweetener. It was $10,000.
“I was just talking to two people we were recruiting, trying to come up with some way to attract them to come to Sidley and the idea of a signing bonus popped into my head,” Phillips said.
“I said, ‘Would it make a difference if we gave you a $10,000 signing bonus?’”
It worked, and the race was on. Other firms began matching or exceeding Sidley’s number. In the mid-’90s, the fledgling firm Kellogg, Huber & Hansen—now known as Kellogg Hansen—raised the price to $75,000, Lazarus said, setting off an arms race that has lasted decades. The firm would go on to hire Neil M. Gorsuch, who had clerked for Justices Byron R. White and Anthony M. Kennedy from 1993 until 1994. Gorsuch worked at the firm from 1995 to 2005. He joined the court in 2017.
Even adjusted for inflation, signing bonuses are now nearly 20 times greater than the first $10,000 offer made 37 years ago.
“I did not envision the bidding war that came into being as a consequence of when I tossed an idea off the top of my head as part of a recruiting effort,” Phillips said.
‘A crash course in appellate advocacy at the highest level’
Clerks spend a year—sometimes two—learning the ins and outs of the appellate field. They screen petitions, discuss the cases with their justice, prepare questions for oral arguments, and draft orders and opinions.
Clerking is “a crash course in appellate advocacy at the highest level,” said Daniel A. Rubens, a partner at Orrick who clerked for Justice Ruth Bader Ginsburg in 2013.
Phillips said a former clerk’s knowledge of how the court operates and what clerks who review petitions are looking for enhances their ability to write successful petitions to the court.
“In a world where virtually every law firm—at least in D.C.—claims to have a Supreme Court practice, there is a continuing demand for former clerks because they understand the process,” he said. “They’ve been there.”
Law clerks also understand how the justices think and approach cases, said another former Supreme Court law clerk, who spoke on the condition of anonymity out of fear of repercussions to their work before the court.
When former clerks return to the court years later as appellate litigators, they are 16 percent more likely than non-clerks to win the vote of the justice they clerked for when deciding a case, according to a 2020 study in Political Research Quarterly. The justices are also 14 percent more likely to side with their former clerk over one of their colleague’s former clerks, the study found.
To avoid conflicts of interest or the appearance of impropriety, the high court has placed conditions on the hiring of their law clerks. They are barred from working on “any case pending before this court or in any case being considered for filing in this court” for two years.
But the clerks’ court experience still offers firms plenty of value from the start, Rubens said. Most of their work is done in lower appeals courts, which requires the same researching, writing and speaking skills as Supreme Court cases, he said.
Others say the guidance for clerks lets them discuss the court’s dynamics. “There’s nothing that stops them from talking about their evaluation of where the court may be heading and what arguments might be more useful in particular situations than in another,” said Stephen Gillers, a judicial ethics expert at New York University’s law school.
Another reason firms are so eager to hire law clerks is because of the likelihood that they will bring prestige to the firm.
Six of the nine sitting justices are former clerks. Firms want to hire and nurture these “superstar” lawyers, Lazarus, the Harvard Law professor, said.
But firms also want to bring in revenue. They do that by using clerks’ knowledge and potential to attract clients.
“That’s what the firms are about. They’re about making more money,” Lazarus said. “They’re doing it because they think it will lead to more clients. That’s the bottom line.”
‘A curious kind of solicitation’
Former Supreme Court justices have at times raised concerns about the bidding war over their law clerks.
In 1986, New York-based law firm Cravath, Swaine & Moore began offering $20,000 bonuses to “beginning lawyers arriving directly from a clerkship who have clerked for at least two consecutive years in two different courts,” according to previously unreported internal court documents found in former Justice Harry Blackmun’s papers at the Library of Congress.
That March, Chief Justice Warren E. Burger sent a memo to the other justices, calling the letter “a curious kind of solicitation.” He wrote that he looked into whether the bonus violated a law prohibiting government officials and employees from receiving outside payments for performing their official duties. Burger concluded the firm’s bonus did not break the law.
Twenty years later, when the Supreme Court signing bonus eclipsed the nearly $200,000 salaries of federal judges, Justice Anthony M. Kennedy complained during a congressional budget hearing that it “devalues the position of the judiciary.”
“Something is wrong when a judge’s law clerk, just one or two years out of law school, has a salary greater than that of the judge or justice he or she served the year before,” Kennedy told senators the following year.
Little has changed since Kennedy’s complaint to lawmakers nearly 20 years ago as one-time signing bonuses continue to outpace the justices’ salaries.
A race with no end in sight?
Jones Day is leading the race to recruit and hire as many Supreme Court law clerks as possible. The firm has hired 22 clerks since the October 2020 term and 86 since the October 2011 term, according to the firm’s website.
Gibson Dunn in comparison, hired 12 clerks since the October 2020 term, while Kirkland & Ellis hired eight, according to a Washington Post survey.
Although a clerk who went to the Jones Day dinner said that the firm spoke to clerks who worked for every justice, all of the firm’s 2023 hires clerked for a conservative justice during the October 2022 term. The recruitment is part of a five-year trend that corresponds with the emergence of a revolving door between the firm and Trump administration officials, including Donald McGahn. McGahn worked at Jones Day both before and after he served as Trump’s first White House counsel.
“The firm’s profile is not attractive to clerks who have clerked for liberal justices and themselves have liberal views,” Gillers said. “I think this is self-selection.”
The law clerk who attended Jones Day’s recruiting dinner last year decided not to apply to work at the firm, citing other career interests.
Jones Day did not respond to repeated requests for comment.
It’s unclear if or when the bonus rate will hit a ceiling.
“As long as it’s viewed as a valuable commodity, the market is going to continue to value it in a competitive way,” Phillips said.
Dave Clarke, Caroline Anders and Aaron Schaffer contributed to this report.
