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Stanford Law School | King of Hearts via Wikimedia Commons[/caption] Stanford Law School has had the third-highest number of alumni land clerkships at the U.S. Supreme Court during Chief Justice John Roberts’ tenure.
This article is part of a series examining the professional pathways and diversity of Supreme Court law clerks.
According to a census of Supreme Court clerks conducted by The National Law Journal, 38 Stanford alums have land positions on the high court since the 2005 term. Even with that success, the school lags behind Harvard and Yale which placed 124 and 119 clerks, respectively. At first blush, the gap between Stanford and Harvard, in particular, would seem disproportionate, considering the schools toggle back and forth between the second and third slots in most major law school rankings. But Stanford professors and alumni are quick to point out Harvard’s law school has more than three times as many students. If you look at the numbers as a proportion of 1L class size, Yale is the real outlier, they say, and Stanford and Harvard send roughly the same proportion of their students onto SCOTUS clerkships. “You have Yale doing very, very well and then Harvard and Stanford doing the same based on the relative class sizes,” said Professor Jeffrey Fisher, co-director of Stanford’s highly regarded Supreme Court Litigation Clinic. “I see no gap between us and Harvard,” wrote Professor Pam Karlan in an email. Karlan, Fisher’s co-director at the clinic, pointed out the Stanford is 32 percent the size of Harvard and has had 32 percent the number of clerks. “Yale’s rate is an outlier,” Karlan said. “Why that is is something you’d have to ask the Justices.” Stanford Law Dean Elizabeth Magill wasn't available to comment for this story. Katy Gabel, assistant director of digital and social media at the school, said the school is proud of its clerkship record, which includes Stanford Law graduates clerking at the nation's court for the past 44 consecutive years.
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Stanford alumni who landed positions on the high court said the 3,000-mile geographical gap does seem to put Stanford on the periphery when it comes to getting the attention of the justices and influential feeder judges on the D.C. Circuit. Joshua Patashnik, a Munger, Tolles & Olson associate who went to Stanford and clerked for Justice Anthony Kennedy in 2012, observed that Stanford students are less likely than their peers on the East Coast to take summer associate positions in Washington, D.C., where they could plug into the network of former clerks and Supreme Court litigators. “The Supreme Court is a very D.C.-centric institution, a very East Coast institution,” Patashnik said. Munger, Tolles & Olson attorney Benjamin Horwich, a Stanford Law alum who clerked for Justices Sandra Day O’Connor and Samuel Alito during the 2005-2006 Supreme Court term, said there’s a lot that goes into landing one of the covered spots: A student’s interactions with professors, the Court of Appeals judge they happen to clerk for, and “frankly a whole lot of luck and good timing.” Horwich said Harvard, by the nature of its larger faculty and alumni pool, has more connections to the court. Horwich also suggested Stanford performs better than expected if you look at the makeup of the current court, which features five Harvard alums (Justices Breyer, Gorsuch, Kagan. Kennedy, and Roberts) and zero from Stanford. “Factors that lead people to that path and build up their networks are very slow to change,” Horwich said. “Stanford Law School doesn’t have the same long and storied and entrenched history as Harvard does.” Horwich suggested that Stanford, founded in 1893, is a “relative upstart” compared to Harvard, which has been around for more than three-quarters of a century longer.
The Liberal/Conservative Breakdown When compared to Harvard and Yale, Stanford sends a disproportionate number of its clerks to the court’s liberal justices. Stanford sent 22 clerks to the liberal justices, 11 to conservatives and five to Justice Kennedy. While Stanford students land twice as many positions with the liberal justices, those ratios at Harvard and Yale are 1.25:1 and 1.39:1 respectively. Clerks and professors contacted for this story caution that it’s hard to draw any conclusions from such a small sample size. “It’s a small numbers thing, so it can be that an increase in the ideological diversity in a law school can quite reasonably change the balance of where law clerks are going,” Horwich said.
Stanford brought on conservative Constitutional law scholar Michael McConnell in 2009, who joined the faculty after a stint on the U.S. Court of Appeals for the Tenth Circuit. Professor McConnell was somewhat surprised the ratio of clerks Stanford sent on to the conservative judges was lower than Harvard or Yale—schools where he said the proportion of “right of center” professors is lower. “Since I don’t know what causes it, I have no idea how to know if it’s permanent or not,” McConnell said. The professor said he’s not aware of any push to place its alumni with the court’s conservative justices in particular. “I would have said that we are interested in all of the justices equally,” McConnell said. Karlan said she didn’t know what was behind the disparity either. “Our students follow the same application strategy as those at other schools — that is, nearly all of them who apply for Supreme Court clerkships apply to all the Justices — so it’s the Justices’ choices that determine the outcomes,” Karlan said. Elsewhere in California If there were a “Big Game” equivalent in the world of Supreme Court clerkships, Stanford would have blown out Cal over the past dozen years. UC-Berkeley is the number 12 feeder law school in the country over the period having sent eight clerks to the court since 2005—two to Justices Ginsburg and Stevens and one each to Justices Kagan, Roberts, Sotomayor and Thomas. Pepperdine has had two students clerk at the court over the period —one who clerked for Justice Alito and one for Justice Thomas—and UCLA has had one alum clerk for Justice Breyer.