Apprentices of Two Sorcerers: Do Supreme Court Law Clerks Who Clerk for Multiple Justices Nudge Them to Agree?
Volume 89, Online
By Michael P. Kenstowicz [PDF]

There are few more prized badges of legal distinction than a Supreme Court clerkship. Within the club of Supreme Court law clerks, a select few have attained an even more exclusive status: clerking for multiple Supreme Court Justices. More than one thousand lawyers have clerked on the Supreme Court since the early 1940s when law clerks became more active in helping the Justices decide cases. But only twenty-two of these law clerks have clerked for two or more Justices while they remained on the Court. The influence of this group of law clerks warrants consideration because while there has been a plethora of literature on Supreme Court law clerks’ effects on Justices’ opinions and votes, no scholarship has yet examined whether a law clerk for multiple Justices nudges them to agree on case holdings during the law clerk’s second term on the Court.

In attempting to answer this question, this Article compares Justices’ votes during these clerks’ second term on the Court (or first term if his or her court of appeals judge was later appointed to the Supreme Court) to the votes of these Justices during the other Terms in which the Justices served concurrently. The Article proceeds in three parts. Section I first examines the changes in law clerks’ roles at the Supreme Court to explain the Article’s focus on clerks serving on the Court since 1946. This Section continues by situating the Article’s inquiry within the literature on the influence of law clerks on Justices’ opinions and votes. Section II describes the Article’s empirical project and findings. Section III then analyzes those findings. The Article concludes with brief commentary on opportunities for further research in light of its findings and on the value of the Supreme Court’s law clerk network.

Michael P. Kenstowicz received his B.A. in 2012 and his J.D. in 2016 from The University of Chicago.