SCOTUS Power Index 2018

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.

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