Sex Discrimination and Supreme Court Clerks

Jill points us to this Linda Greenhouse article about the decline in female clerks at the Supreme Court. While I concede Eugene Volokh’s point that you can’t read too much into a one-year decline, given that this is simply another data point in the long-term underrepresentation of women among Supreme Court clerks the larger questions about this remain outstanding, and as Jill says it’s exceptionally implausible to think that discrimination (whether direct or structural) isn’t playing a significant role. It’s worth noting that one explanation for why only 147% of Scalia’s clerks in the last 7 years have been women–“could not find enough conservative women to meet his test of ideological purity”–is problematic because if I understand correctly Scalia usually hires at least one liberal clerk. And it’s also worth noting, of course, that Scalia not only wrote a dissent expressing withering contempt for the idea that the equal protection clause could apply to gender discrimination (although the 14th Amendment is framed in general terms, it’s unclear why the 15th Amendment mentions race explicitly if the general protections of the 14th Amendment were publicly understood as applying only to race, and Scalia’s historical analysis doesn’t even rise to the level of being cursory in any case), but went out of his way to make clear that he was sympathetic to Virginia’s denial of a military education to women as a matter of policy. Is it unreasonable to think that his beliefs might affect his choice of Supreme Court clerks? At any rate, it’s simply doesn’t pass the straight face test to think that less than a half-century after Sandra Day O’Connor graduated third from her class at Stanford Law and was only offered secretarial jobs, and a quarter century after the Chief Justice expressed dismay about the possibility of the first woman being appointed to the Supreme Court, that these attitudes have completely vanished, or that the effects of long-term systematic discrimination have filtered out of the system after such a short time.

It’s also worth nothing the various ways that sex discrimination plays a role in the lack of women among Supreme Court clerks. Last month, Volokh suggested that women “might have more difficulty getting their husbands to move with them than men would have getting their wives to move with them (perhaps because the women’s spouses are more likely to have hard-to-move jobs than the men’s spouses)” and “might have more difficulty clerking, especially in a highly demanding clerkship, if they have children than comparable men would.” This is right, but of course this isn’t an alternative explanation to sexism–these practices constitute sexism. Justice Scalia has nine children–does anybody think that the responsibilities inherent in having a large family should have prevented him from being a prominent academic and judge? There’s nothing inevitable about women will the ability and training to be top-rank lawyers being forced to choose between family and careers; nothing about having a penis makes one incapable of caring for children.

A final note is that I don’t mean to suggest that there’s anything about being “conservative” per se that leads to sexism in choosing Supreme Court clerks. As you can see here, Thomas–who, I reiterate, is not a Scalia clone at all–has a pretty good record of hiring female clerks (and, conversely, the great liberal William Brennan was notoriously hostile to female clerks.)