How un-hireable attorneys become Supreme Court clerks
Crystal Clanton is a beneficiary to a hiring pipeline open exclusively to conservative and rightwing law students that places them, undeservedly, in these influential jobs.
Every year, Supreme Court Justices hire 36 law clerks to work in their respective chambers, review certiorari petitions, research relevant case law and prepare for oral arguments. One of Justice Clarence Thomas’s four clerks for the upcoming year is Crystal Clanton, a 29-year-old attorney from Illinois currently clerking for conservative judge William Pryor (he likes to make fun of people who criticize the Federalist Society). Seven years ago, Clanton was fired from the right-wing youth group Turning Point USA for having sent text messages that were too racist, even by their standards.
As a soon to be lawyer her story got me wondering: how did a woman like Clanton, whose behavior would make her genuinely un-hireable in white collar America land the most prestigious legal job in the United States?
Clanton had several things working in her favor. One was her unique personal relationship to the Thomas family. More importantly, however, Clanton is a beneficiary to a hiring pipeline open exclusively to conservative and rightwing law students that places them, undeservedly, in these influential jobs.
I first remember learning about the inner workings of the Federalist Society (FedSoc) in 2019, when Senator Sheldon Whitehouse described its agenda to control the nominating process of federal judges. He laid out the organization’s secret backers, corporate groups like Koch Industries, and conservative donors like the Mercer family, which bankrolled the Trump campaign and helped start Breitbart.
Given its deep-pocketed donors, it’s unsurprising FedSoc is a powerful networking organization, connecting conservative students to mentors and bosses. It was founded in 1982 by students at Yale, Harvard and the University of Chicago who felt their ideas weren’t being represented in law classrooms. At its inception, the organization promoted originalist ideas championed by Antonin Scalia.
In the years since FedSoc’s founding as a student group, it has become extremely powerful in the selection and grooming of next generation lawyers. Exhibit A: Five of the current justices are current or former members of the organization. Exhibit B: In 2016, Leonard Leo, who is largely credited with directing the organization’s movements, made the list of Trump’s possible SCOTUS picks.
So back to Crystal Clanton, who recovered miraculously from her public fall-from-grace in 2017. Her comeback was helped along by the Federalist Society.
Clerking at the Supreme Court is arguably the most prestigious job available to an attorney. After a clerkship, lawyers joining firms can expect to earn bonuses of around $500,000. Former clerks have gone on to counsel presidents or into academia. Attorney General Merrick Garland even clerked after he graduated from Harvard Law School.
The jobs are extremely difficult to get, particularly if you attend a lower ranked law school. More than two-thirds of the U.S. Supreme Court clerks between 1980 and 2020 came from Harvard, Yale, Stanford, Columbia and the University of Chicago. The top fourteen law schools, an unofficial category that refers to the schools dominanting law school rankings, account for 86% of all Supreme Court law clerks. My law school is usually ranked around #8 and has sent only five students to clerk at the highest court since 2017. Two of those clerks were ranked number one in their respective law school class.
Rankings do not help level the playing field nor reward merit, but right now they matter intensely in hiring practices—especially if you’re a law student in the left-leaning majority.
Clanton’s ascent is one particularly egregious example of a pervasive inequity in the stratified legal world. If you’re a liberal and want to enter a higher echelon of legal practice, you basically have to go to Harvard, Yale or Stanford and be at the top of your class. But if you’re conservative you can get fired from a white nationalist organization and still land a job as Clarence Thomas’s clerk.
There is no comprehensive study of political affiliation of law students, but law schools are liberal. With a conservative supermajority on the court, most students are competing for spots with only three justices—Sonia Sotomayor, Elena Kagan & Ketanji Brown Jackson. Conservative justices will only hire conservative students and vice versa.
Justice Thomas has long rejected the traditional hiring methods claiming he is “not part of this new or faux nobility,” though he himself graduated from Yale Law School. Thomas also has uncomfortably close ties with The Federalist Society. He has vacationed on Republican mega-donor Harlan Crow’s yachts, his wife was paid thousands of dollars by Leo for consulting work & he regularly speaks at FedSoc events despite the importance of judges remaining impartial.
He also uses FedSoc to hire clerks like Clanton. Clanton attended Anton Scalia Law School at George Mason University, which is ranked #32 in the country and yet has sent three students to the Supreme Court in the past three years (two to Justice Thomas & one to Justice Alito). Notre Dame, ranked #27, produced its first Supreme Court Justice in Amy Coney Barrett, and has sent three clerks to conservative justices in the past 5 years.
Those students are leapfrogging traditional hiring methods intended to elevate lawyers seeking prestige (and, sure, over rewarding those who attended Harvard Law School) by affiliating with a right wing organization committed to dismantling civil liberties.
I spent time combing through hiring in the past few years. In the past seven years, Justice Thomas hired six students from law schools outside the top 10. Those clerks who made it to the Supreme Court worked for lower level judges like Neomi Rao, William Pryor, Janice Rogers Brown and E. Grady Jolly. The unifying fact is that each attorney clerked for a judge affiliated with the Federalist Society.
Affiliation with these judges and with the conservative organization serves as a signal to other hiring judges or an eventual hiring manager that you are bought into the same belief system they are, a system that is infiltrating our daily lives in visible (the overturning of Roe v. Wade) and invisible (like this conservative litmus test) ways.