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The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation?

Posted by on Monday, November 30, 2009 in Articles, Volume 62, Number 6, Volumes.

This Article presents the first comprehensive empirical study of the post-clerkship employment of law clerks at the Supreme Court from 1882 to the present, and it uses that data to flesh out a historical and institutional interpretation of the clerkship and the recent political polarization of the Court more generally. The liberal tradition of the clerkship arose out of Louis Brandeis’s vision of former law clerks serving a progressive legal agenda, a tradition that Felix Frankfurter helped institutionalize while striving to remove ideological bias. With the advent of a conservative bloc on the Court, this tradition has waned, due to the emergence of markedly partisan patterns in the Justices’ hiring of clerks and post-clerkship careers in academia, private practice, and government. After documenting these trends, the Article suggests institutional reforms both for those seeking to perpetuate this polarization and for those seeking to erase it.