WASHINGTON, Aug. 29 : Everyone knows that with the retirement of Justice Sandra Day O’Connor, the number of female Supreme Court justices fell by half. The talk of the court this summer, with the arrival of the new crop of law clerks, is that the number of female clerks has fallen even more sharply.
Just under 50 percent of new law school graduates in 2005 were women. Yet women account for only 7 of the 37 law clerkships for the new term, the first time the number has been in the single digits since 1994, when there were 4,000 fewer women among the country’s new law school graduates than there are today.
Last year at this time, there were 14 female clerks, including one, Ann E. O’Connell, who was hired by William H. Rehnquist, the chief justice who died before the term began. His successor, Chief Justice John G. Roberts Jr., then hired Ms. O’Connell.
Justice Samuel A. Alito Jr., who joined the court in January, hired Hannah Smith, who had clerked for him on the appeals court where he had previously served. So by the end of the term, and counting Ms. O’Connell twice, there were 16 women among the 43 law clerks hired by last term’s justices.
After years in which more than a third of the clerks were women, the sudden drop was a hot topic this summer on various law-related blogs. Word of the justices’ individual hiring decisions spread quickly among those for whom the comings and goings of law clerks are more riveting than any offering on reality television.
Who are these young lawyers who are the subject of such interest? They do not, contrary to myth : propagated in part by law clerks themselves : run the court. They do play a significant role in screening new cases, though, and they help their justices in preparing for argument and in drafting opinions.
While their pay is a modest $63,335 for their year of service, a Supreme Court clerkship is money in the bank: the clerks are considered such a catch that law firms are currently paying each one they hire a signing bonus of $200,000.
In interviews, two of the justices, David H. Souter and Stephen G. Breyer, suggested that the sharp drop in women among the clerkship ranks reflected a random variation in the applicant pool.
But outside the court, those who care about what goes on inside are thirsting for more than statistical randomness as an explanation.
A post on one popular legal Web site, the Volokh Conspiracy, asked,”Why so few women Supreme Court clerks?”and drew 135 comments during a single week in July. The answers included the relative scarcity of female students among the top editors of the leading law schools’ law reviews : an important preclerkship credential : and the absence of women among the”feeder judges,”the dozen or so federal appeals court judges who, year in and year out, offer a reliable pipeline to the Supreme Court for their own favored law clerks.
Some speculated that Justice Antonin Scalia, who hired only two women among 28 law clerks during the last seven years and who will have none this year, could not find enough conservative women to meet his test of ideological purity. (Justice Clarence Thomas will also have no female clerks this year, but over the preceding six years hired 11.)
In a brief telephone interview, Justice O’Connor said she was”surprised”by the development, but declined to speculate on the cause.
Justice Ruth Bader Ginsburg expressed no such surprise. In a conversation the other day, she knew the numbers off the top of her head, and in fact had noted them in a speech this month in Montreal to the annual meeting of the American Sociological Association, during which she also observed with obvious regret that”I have been all alone in my corner on the bench”since Justice O’Connor’s retirement in January.
Justice Ginsburg, who will have two women among her four clerks, declined during the conversation to comment further on the clerkship numbers. Why not ask a justice who has not hired any women for the coming term, she suggested.
One who is in that position, Justice Souter, said he was disappointed to find himself without any female clerks. He explained that he had hired the top four applicants, who turned out to be men.
In recent years, more than a third of Justice Souter’s law clerks have been women; since women rarely make up as much as a third of the applicant pool, he said, they have been somewhat overrepresented among his hires.
“I’ve found that a mix is a wonderful thing,”he said, speaking from his home in New Hampshire.
Unaware of the overall drop in numbers, Justice Souter said he assumed it reflected no more than a random variation among this year’s applicants.
That was also the assessment offered by Justice Breyer, who nonetheless has hired his usual total of two women for his four law clerk positions.
In the last seven years, Justice Breyer has hired more women than any other member of the court; more than half his law clerks, 15 of 28, have been women, a result, he said in an interview from his chambers in Boston, not of any conscious effort but of choosing the best available candidates.
With the number of women in clerkships high by historical standards until now, attention has been focused on a lack of ethnic and racial diversity among the clerks. There are no reliable figures, but the clerkship cadre remains overwhelmingly white.
It was not until the 1940’s that any justice hired either a female or black law clerk.
Justice William O. Douglas hired the first female clerk, Lucille Lomen, in 1944, and it was 22 years before Justice Hugo L. Black hired the second, Margaret Corcoran. The first black clerk, William T. Coleman Jr., who is still practicing law here, was hired by Justice Felix Frankfurter in 1948.
Justice Frankfurter was not, however, ready to hire a woman when the dean of Harvard Law School strongly recommended a former star student in 1960. He turned down Ruth Bader Ginsburg.
A student asked me this question: may legal history scholarship properly be categorized as “feminist” because it includes (or even centers) women in an otherwise conventional narrative? I think the answer is no, not any more. Writing about women’s experiences at one point may have been a “feminist” act, but that is no longer true.
