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

Kennedy's Retirement Leaves His Future Law Clerks in Limbo