The Role of Law Clerk Numbers in the Rise of the Supreme Court Bar

Adam Liptak has an article in the New York Times which is a variation on the “rise of the specialized Supreme Court bar” story — in this case, focusing on the role of the specialized Supreme Court bar in representing business interests before the Supreme Court. There’s an interesting underlying question here: Why did a specialized Supreme Court bar form in the first place? Most accounts suggest it started in the 1980s and has grown in size since then. But why?

My pet theory attributes the creation of the specialized Supreme Court bar to the increase in the number of law clerks each Justice hires. Back in the 1930s, each Justice typically would hire one clerk. That number went up to two by the 1950s, then three around 1970, and then four by the 1980s. Since the 1980s, the Justices have “graduated” about three dozen former clerks a year — with the exact number depending on whether individual Justices hire their full complement of clerks, as well as whether there are retired Justices around still hiring.

The increase in the number of clerks led to a crew of young lawyers entering private practice every year who happen to have great expertise in how the Supreme Court works. The Supreme Court can be a quirky institution, and these young lawyers knew the quirks. If you say that 2/3 of former clerks went into private practice, that’s around 25 new lawyers a year. Many of those former clerks naturally were interested in Supreme Court work, so they started to focus on Supreme Court work and helped permit and foster appellate practices focused on Supreme Court litigation. With enough former clerks around, there were lots of lawyers who could help create dedicated Supreme Court practices that amounted to a dedicated Supreme Court bar.

Obviously, not every Supreme Court specialist is a former Supreme Court clerk. Many are not, and many major players in the Supreme Court bar are not (think Seth Waxman, Ted Olson, Andrew Frey, Tom Goldstein, and Roy Englert, just to name a few prominent advocates among many). But I suspect that the rise of the dedicated Supreme Court bar is largely a delayed response to the increase in the number of clerks per Justice.

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