A Record Number of SCOTUS Clerks Are Likely This Term—Thanks to Kennedy
What accounts for the larger number of Supreme Court clerks? The answer seems to be Anthony Kennedy's retirement on July 31 and its impact on the allocation of his clerks.
August 08, 2018 at 03:06 PM
5 minute read
Justice Anthony Kennedy during a House Committee on Appropriations Subcommittee on Financial Services hearing to review the Supreme Court budget request for fiscal year 2016 on March 23, 2015. Photo by Diego M. Radzinschi/ALM
By an accident of timing, retired Justice Anthony Kennedy has apparently given his U.S. Supreme Court colleagues a gift that will keep on giving for the upcoming term: what is likely to be a record number of law clerks. And a record number of women may be filling those positions.
The official roster of law clerks has not yet been finalized or released by the court, but Above the Law, an authoritative source of early clerk hiring information, has painted a scenario that will likely result in 41 clerks assisting the members of the court this term, with more than 17 of them female. Here's the tally:
>>> The 32 clerks hired by the eight sitting justices (they get to hire four each). Fifteen of the clerks are women.
>>> Four clerks to be hired by new justice Brett Kavanaugh, assuming he is Senate-confirmed. By reputation, he makes a point of hiring diverse clerks, so two or more may be women.
>>> Two clerks, one each for retired Justices John Paul Stevens and David Souter. One of the clerks is a woman.
>>> Three clerks hired by Kennedy, who have apparently been detailed to other sitting justices. One of those clerks is female.
Usually, the number of law clerks in a nine-justice term tops out at 38, including the single clerks hired by retired justices. And even without counting Kavanaugh's future clerks, 45 percent of the clerks for the upcoming term are women, a slightly higher percentage than the last few years, and much higher than the average of 34 percent since 2005.
What accounts for the larger number of clerks? The answer seems to be Kennedy's retirement on July 31 and its impact on the allocation of his clerks.
Ordinarily, a retired justice like Kennedy is allotted only one clerk, whose work time would be shared with another justice. When Lewis Powell retired on June 26, 1987, his four clerks for the upcoming 1987-1988 term were “stranded,” except for one clerk assigned to him in retirement. The other three were not hired until the 1988-1989 term, when justices who had not already picked all of their clerks for that term took them on.
But Kennedy's retirement last month was different. His retirement date of July 31 came after his law clerks for the new term reported for duty in mid- or late-July. As a result, the orphaned clerks Kennedy had hired for the new term were already on the payroll when he retired, according to Above the Law's David Lat. Once on the staff, it became easier to reassign them to other justices.
The precise date of retirement apparently makes all the difference at the court. Justice William Brennan Jr. retired suddenly, on doctors' recommendations, on July 20, 1990—but his new batch of clerks had been told to begin work on July 23.
Marcella David, one of those stranded clerks, recalled in an interview Monday that when she and the others arrived at the court on July 23, 1990, they met with Brennan, who said that then-Chief Justice William Rehnquist had determined that “since we were not on the payroll, we would not be put on the payroll, and we would all land on our feet.” David is now a professor at Florida State University College of Law.
One of the four became Brennan's retirement clerk, and another was picked up by Brennan's successor David Souter. David and the other clerk-to-be never did work for the Supreme Court. “I really can't be upset,” David said. “It set me firmly on the path of being a professor.”
In a sense, the Kennedy clerk transition was more akin to what happens when a justice dies with clerks already on staff. When Justice Antonin Scalia died in February 2016, his already-working clerks were quickly reassigned to the chambers of other justices to fill out the term.
According to Lat's list, three of Kennedy's hires for the new term have been detailed to other justices: Conrad Scott, joining Justice Ruth Bader Ginsburg's four clerks; Aimee Brown, working with Justice Samuel Alito Jr.'s team; and Alex Kazam, assigned to Justice Neil Gorsuch and his four clerks. (Kennedy is apparently not seeking a retirement clerk for this term, but his fourth clerk hire, Clayton Kozinski, will be his retirement clerk in the 2019-2020 term.)
As an extra bonus Sarah Sloan, who is clerking for retired Justice John Paul Stevens but was lined up to work with Kennedy, now will be assisting Justice Elena Kagan, according to Lat.
The bottom line is that four of the court's current justices will in effect have five clerks at their side instead of four—an increase that could speed up the court's pace in the upcoming term.
Read more:
SCOTUS Law Clerks: The Gender Imbalance
Mostly White and Male: Diversity Still Lags Among SCOTUS Law Clerks
Kavanaugh's Clerk Hires: Inside the Diverse, Ivy-Heavy Group of 48
Brett Kavanaugh's Female Clerks Tout His Advocacy for Female Lawyers
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View All

Trump's DOJ Delays Releasing Jan. 6 FBI Agents List Under Consent Order
3 minute read

Judge Grills DOJ on Trump’s Birthright Citizenship Executive Order
Trending Stories
- 1Parties’ Reservation of Rights Defeats Attempt to Enforce Settlement in Principle
- 2ACC CLO Survey Waves Warning Flags for Boards
- 3States Accuse Trump of Thwarting Court's Funding Restoration Order
- 4Microsoft Becomes Latest Tech Company to Face Claims of Stealing Marketing Commissions From Influencers
- 5Coral Gables Attorney Busted for Stalking Lawyer
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250