This is the eighth and final piece in a series on what I believe the court can, and should, do better. *** Every year, each justice hires four law clerks. Under the current practice, the justices will hire young lawyers with sterling credentials who secured two or three prior clerkships from “feeder” judges. Often, interviews are scheduled while applicants are still in law school, and before they have even started their first clerkship. Justices have built elaborate screening networks with former clerks, as applicants have to traverse multiple rounds of interviews. The justices would acknowledge that for every clerk that is hired, there are many more equally qualified candidates. Getting the job is like winning the gold medal at the Olympics – you are the best of the best but conditions have to be just right. During the term, the clerks are privy to most things that happen at the court. The information they learn makes them extremely valuable. Accordingly, clerks are handsomely rewarded. Some law firms pay signing bonuses in excess of $700,000, even as former clerks are barred from practicing before the court for two years. Invariably, these former clerks often become the biggest boosters for their justice and the court itself. I have been critical of this law clerk cartel. Far too much power is granted to people with so little experience. As a thought experiment, I proposed how Congress could phase out Supreme Court law clerks altogether. This plan is extremely unlikely. But perhaps the justices can constrain their own process. Justice Ketanji Brown Jackson has taken some important first steps . For starters, she only considers applicants who have already completed an appellate clerkship. This step eliminates the unusual phenomenon in which law students are applying for Supreme Court clerkships before actually completing, or even starting, their first clerkship. Moreover, Jackson limits the application process to the submitted materials. There are no backdoors or secret paths to the clerkship. The notice states clearly that “[n]o information will be considered outside of the formal application process.” And references are barred from contacting the justice: “Neither applicants nor their references, recommenders, or other advocates should contact Justice Jackson or her current or former staff regarding a pending or prospective application.” If there are any doubts, the penalty is stated clearly: “Failure to follow this instruction may disqualify an application from further consideration.” Good for KBJ. Perhaps as the newest member of the court, she is still able to assert control over the hiring process before it explodes beyond her control. Other justices could have followed her lead, but they apparently have not. I would adopt all of Jackson’s preconditions and go several steps further. First, the justice should ask all of their clerks, following their clerkship, to work for two years in government service, for a non-profit, or some other public interest work. Implicit in this commitment is a postponement, or even rejection, of the gratuitous signing bonus. The justice would make clear that they are looking to hire clerks with an eye towards public interest. Moreover, these clerks will likely get far more practical experience following their clerkships outside of the private sector, where they can do far more good. Second, I have proposed that the justices should spend part of their time working in the courthouses across the country. Their law clerks should join them. This project is mostly about keeping the judges grounded, but I do think there is value in keeping the law clerk’s feet planted on the ground. Working in a marble palace can distort any sense of reality. Perhaps law clerks could spend part of the year in the home chambers and part of the year at the Supreme Court. Or some law clerks could spend all of their time in either location. Or perhaps a justice could go to D.C. without any law clerks. The third proposal will perhaps be the most draconian: the clerks should be barred from talking about cases with anyone in other chambers. Books and exposés about the Supreme Court recount how law clerks will often engage in shuttle diplomacy between the chambers. Documents about the so-called “Shadow Papers” may have leaked from someone who kept clerkship records from 2016. The law clerks become part of the deliberations. This approach may be useful and convenient for the justices, but I think it can distort the power structure. The clerks should be reminded that the justices are in charge, and they are just helpers. If the clerks are unable to talk with other chambers, then perhaps the justices would be forced to talk to each other more. And that is a very good thing. *** This concludes my eight-part series on unilateral Supreme Court reform. The first installment proposed eliminating the summer recess. The second installment urged the justices to hold regular press conferences. The third installment called on the justices to hold oral argument outside of Washington, D.C. The fourth installment considered how the chief justice could share much of his power. The fifth installment would restore the practice of the justices riding circuit. The sixth installment would enhance the Supreme Court minority’s procedural powers. And the seventh installment proposed empowering the Supreme Court’s supermajority on substantive matters. My sincere hope is that this series will generate discourse and debate. Unlike most proposals for court reform, these ideas should garner bipartisan support. None of them purport to change how many justices there are and how they decide cases. All of these proposals would maintain the independence of the court. Indeed, many of these ideas could be adopted by the justices unilaterally. Ultimately, the justices should not be bystanders in debates about SCOTUS reform. If the justices take the initiative to adopt reforms on their own, the impetus for external reform will decline. These changes would not only be good for the court but society as a whole.
Sep 15, 2026 · bySCOTUSblog
Oct 6, 2026 · byDeutsche Welle
Oct 6, 2026 · byThe Guardian
Oct 6, 2026 · byAl Jazeera
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Sep 17, 2026 · byThe Hollywood Reporter
