SCOTUS Power Index 2018
When we think about the power of a Supreme Court Justice, we tend to focus on only the decisions they make during their years on the court. But that measure undervalues the immense influence a single Supreme Court Justice will have, an influence that lasts far beyond their terms or even their natural lives. To appreciate the full scope of their impact, you have to look at the effect their former clerks have on American jurisprudence.
A Supreme Court clerkship is like finishing school for America's best legal minds. Supreme Court clerks go on to shape the law. In the private sector, former clerks represent the wealthiest clients and the strongest lobbies. In legal academia, they mold young legal minds as leading law school professors. And, of course, Supreme Court clerks are very well represented on the bench, spending their careers shaping the law one case or controversy at a time. And as we all have just witnessed, a select few go on to become Supreme Court Justices themselves. This Index tries to capture a measure of that long-term power.
One way to think about the influence of a football coach is to look at their “coaching tree.” Analogously, one measure of the influence of a judge is to look at his or her “tree” of former clerks, who cannot help but be influenced by the Justice's jurisprudential outlook, ideology, and point of view. That gives you a full measure of what these nine spots are truly worth.
– Elie Mystal
A Note on Methodology
The first step in putting together this Index was to determine the employment circumstances for the approximately 1,200 former clerks for the current and relevant former Supreme Court Justices, from Potter Stewart all the way up to Neil Gorsuch (but excluding Brett Kavanaugh).
The vast majority of these former clerks can be naturally sorted into four broad categories (in descending numerical order): Law firms (a/k/a “Biglaw”), Academia, Government, and the Judiciary. We weighted each of these categories equally (25%).*
Within each of these four categories, we sorted the positions into tiers based on the formal (or widely understood and accepted) hierarchies specific to the space, both in terms of title and organization/institution. Some (simplified) examples:
- JUDICIARY: Federal judges weighed more heavily than state judges. Federal circuit judges count more than district judges.
- BIGLAW: All firm partners are weighed more heavily than associates, but a partner at, for example, Davis Polk counts more than a partner at Jones Day.
- ACADEMIA: Deans > full professors > associate professors, with an additional distribution of credit for the standing of the school (e.g., Harvard > Hastings).
- GOVERNMENT: The distinctions in this category were the most challenging. Obviously, U.S. Senator > Assistant U.S. Attorney. However, there were various nuances, e.g., among the various branches of the DOJ, which required consultation with insider experts for purposes of establishing meaningful tiers.
We made no effort to control for such factors as the number of clerks each Justice hired during his or her tenure or their length of service as a SCOTUS justice. Clearly, our formula favors those justices whose service on the Supreme Court is or was timed to allow the most former clerks to have reached the pinnacle of their careers currently. (We are not saying that that Clarence Thomas is a “better” or “more important” figure than Thurgood Marshall, only that the Thomas clerks are ascendant and most of the Marshall clerks are winding down their careers.) This ATL SCOTUS Power Index is an attempt to capture relative reach and influence right now.
* There is also a significant cohort of former clerks who could be said to be currently in “Business” and a smaller set working in the world of Non-profits, Think Tanks, and Public Interest. We find that these categories do not exhibit the same discernible, coherent internal hierarchies as the others, thus we just addressed through separate “headcount” exercises.
The 2018 SCOTUS Power Index | |
Rank | Justice |
---|---|
1 | Justice Anthony Kennedy |
2 | Justice Antonin Scalia |
3 | Justice Clarence Thomas |
4 | Justice Stephen Breyer |
5 | Justice Sandra day o'Connor |
6 | Justice John Paul Stevens |
7 | Justice Ruth Bader Ginsburg |
8 | Justice David Souter |
9 | Justice Thurgood Marshall |
10 | Justice William Rehnquist |
11 | Justice William Brennan |
12 | Justice Samuel Alito |
13 | Justice Harry Blackmun |
14 | Justice John Roberts |
15 | Justice Warren Burger |
16 | Justice Sonia Sotomayor |
17 | Justice Elena Kagan |
18 | Justice Lewis f Powell |
Former Clerks Employment Outcomes by Category
Commentary and Analysis
The SCOTUS Power Rankings reflect the influence of a justice’s former clerks. But interestingly enough, they mirror the influence of the justices themselves.
We are publishing this SCOTUS Power Index shortly after (former Kennedy clerk) Brett Kavanaugh’s confirmation as President Trump’s choice to replace Justice Kennedy. Perhaps ironically, by stepping down, Kennedy stepped up in our Index to take the top overall spot, narrowly edging out Justice Scalia. While Justice Scalia might have exerted the greater big-picture influence on the law, Justice Kennedy arguably had the biggest effect on the outcome of specific SCOTUS decisions. During his many years as the “swing justice,” he cast the key votes in numerous landmark cases, on such important issues as LGBT rights, free speech, and abortion. His votes were sometimes conservative and sometimes liberal—and so were his clerks, who have gone on to prominent positions on both sides of the aisle. Justice Scalia is the runner-up—and he is also, in the view of many SCOTUS watchers, the most influential justice of the past few decades. His textualist and originalist views on constitutional and statutory interpretation have dramatically reshaped both the work of the Court and American law generally. In the words of Justice Kagan: “The fact of the matter is, you wake up in 100 years and most people are not going to know most of our names. I think that is really not the case with Justice Scalia, whom I think is going to go down as one of the most important, most historic figures on the Court.”
Justice Thomas comes in third, and his high ranking should come as no surprise. The influence of his powerful and distinctive views on constitutional law has been greatly underestimated—and it’s not yet fully known since it will grow over the years, as the views expressed in his concurrences and dissents become majority opinions of the future. As for his network of former clerks, their power cannot be denied, especially in the current administration. As we have previously described them, the Thomas chambers alumni constitute “the legal brain trust of the Trump Administration.”
– David Lat
Biglaw | |
Rank | Justice |
---|---|
1 | Justice Clarence Thomas |
2 | Justice Antonin Scalia |
3 | Justice Anthony Kennedy |
4 | Justice Stephen Breyer |
5 | Justice Sandra day o'Connor |
6 | Justice William Rehnquist |
7 | Justice Ruth Bader Ginsburg |
8 | Justice William Brennan |
9 | Justice Samuel Alito |
10 | Justice John Paul Stevens |
11 | Justice John Roberts |
12 | Justice Thurgood Marshall |
13 | Justice David Souter |
14 | Justice Sonia Sotomayor |
15 | Justice Warren Burger |
16 | Justice Elena Kagan |
17 | Justice Lewis f Powell |
Noteworthy Individual
NEAL KATYAL Neal Katyal is one of the most famous appellate lawyers in the country. He’s a partner at Hogan & Lovells, served as acting Solicitor General under President Obama, and took on the Trump administration in the travel ban cases. He was one of Al Gore’s lawyers in Bush v. Gore, and represented colleges in Grutter v. Bollinger, the case that saved affirmative-action (as of this writing). Katyal also has a media presence that matches his resume: he’s a regular on cable news shows, he’s been on Stephen Colbert, and even played himself on House of Cards.
Commentary
Justice Thomas never spent any time in Biglaw or in private practice more generally, so it might be surprising to see him at the top of this list, but it makes sense upon further reflection. The libertarian-leaning jurist favors corporate interests, strong property rights, a smaller government, and a larger private sector. Each summer, he has his new clerks over to his house for a screening of “The Fountainhead,” the 1949 adaptation of the classic libertarian novel by Ayn Rand. Is it any wonder that so many Thomas clerks wind up in Biglaw?
Legal Academia | |
Rank | Justice |
---|---|
1 | Justice Thurgood Marshall |
2 | Justice David Souter |
3 | Justice Sandra day o'Connor |
4 | Justice Stephen Breyer |
5 | Justice John Paul Stevens |
6 | Justice Ruth Bader Ginsburg |
7 | Justice Antonin Scalia |
8 | Justice Anthony Kennedy |
9 | Justice Harry Blackmun |
10 | Justice Clarence Thomas |
11 | Justice Warren Burger |
12 | Justice William Brennan |
13 | Justice William Rehnquist |
14 | Justice Lewis f Powell |
15 | Justice John Roberts |
16 | Justice Sonia Sotomayor |
17 | Justice Elena Kagan |
18 | Justice Samuel Alito |
Noteworthy Individual
HEATHER GERKEN It should come as no surprise that the leader of the leading law school is a former Supreme Court clerk. After graduating from the University of Michigan Law School, Heather Gerken clerked for Judge Stephen Reinhardt, the late liberal lion of the Ninth Circuit, and Justice David H. Souter. The bookish Justice Souter ranks second (behind only Justice Thurgood Marshall) in terms of sending clerks into legal academia—thanks to stars like Dean Gerken.
Commentary
As the architect of the civil rights movement’s legal strategy, Justice Marshall rose to fame as a brilliant practicing lawyer, not an academic ensconced in the ivory tower. But he wound up influencing the academy anyway, by sending so many of his clerks into professorships and deanships at top law schools. His clerks have served as the deans of such great schools as UVA, NYU, and Harvard—where some dozen Marshall clerks have taught as professors, and two have served as dean (including Elena Kagan, before her appointment to the Supreme Court).
Judiciary | |
Rank | Justice |
---|---|
1 | Justice Sandra day o'Connor |
1 | Justice Anthony Kennedy |
3 | Justice Harry Blackmun |
4 | Justice John Paul Stevens |
5 | Justice Antonin Scalia |
6 | Justice Warren Burger |
6 | Justice William Rehnquist |
8 | Justice Ruth Bader Ginsburg |
8 | Justice Thurgood Marshall |
10 | Justice Clarence Thomas |
11 | Justice William Brennan |
12 | Justice Stephen Breyer |
13 | Justice David Souter |
14 | Justice Lewis f Powell |
Noteworthy Individuals
JUSTICE NEIL GORSUCH / MERRICK GARLAND Neil Gorsuch clerked for Anthony Kennedy. But his jurisprudence bears more in common with the man he controversially—and many feel illegitimately—replaced, Antonin Scalia, than with his former boss. A truer intellectual successor to Anthony Kennedy would have been Merrick Garland. He was nominated to be a centrist judge—which is what used to happen when Presidents of one party put forth judges to the Senate controlled by the other party.
Commentary
Justice Kennedy, with two clerks currently serving as SCOTUS justices, is a logical leader in this category. But it’s interesting to see him tied with Justice O’Connor, who did not have a conventional path to the bench herself. Unlike many federal judges, she never served as a law clerk, and she came to SCOTUS after serving as a state legislator and then a state rather than federal judge. But she has sent an impressive nine clerks into the judiciary—including four women, fittingly enough for the first woman to serve on the U.S. Supreme Court.
Government | |
Rank | Justice |
---|---|
1 | Justice Stephen Breyer |
2 | Justice Antonin Scalia |
3 | Justice John Paul Stevens |
4 | Justice Anthony Kennedy |
4 | Justice Clarence Thomas |
6 | Justice David Souter |
6 | Justice Ruth Bader Ginsburg |
8 | Justice Samuel Alito |
9 | Justice Sandra day o'Connor |
10 | Justice Harry Blackmun |
11 | Justice William Rehnquist |
12 | Justice Elena Kagan |
13 | Justice Thurgood Marshall |
14 | Justice John Roberts |
15 | Justice William Brennan |
16 | Justice Warren Burger |
17 | Justice Lewis f Powell |
18 | Justice Sonia Sotomayor |
Noteworthy Individual
SENATOR TED CRUZ Ted Cruz, the junior senator from Texas, provokes strong reactions—which could determine whether he wins reelection this November. But whether you love him or hate him, you can’t deny that Senator Cruz is one of the most famous and powerful former Supreme Court clerks. And at age 47, he surely has many decades ahead of him in public life. Don’t be surprised if the ex-SCOTUS clerk makes another run at POTUS in the future.
Commentary
As counsel to the Senate Judiciary Committee, a lawyer for the Justice Department, and now a Supreme Court Justice, Justice Breyer has served in all three branches. He has written and spoken widely about our democratic system of governance and how to make it work better. When it comes to the federal government, he has deep knowledge of its workings and profound respect for its mission (which might explain why he always shows up for, and even seems to enjoy, State of the Union addresses). It’s no surprise to see Justice Breyer as the top feeder judge for government.
Highest Number of Former Clerks Working for
| |
Rank | Justice |
---|---|
1 | Justice Anthony Kennedy |
2 | Justice Antonin Scalia |
3 | Justice Lewis f Powell |
Highest Number of Former Clerks Working for
| |
Rank | Justice |
---|---|
1 | Justice Ruth Bader Ginsburg |
2 | Justice Harry Blackmun |
3 | Justice Anthony Kennedy |