Racial Politics at the Supreme Court
Prof. Eugene Volokh
Racial Politics at the Supreme Court
Prof. Eugene Volokh, UCLA Law School
(originally published in very slightly different form in Wall Street Journal, Oct. 12, 1998)
It's not typical to find protestors demonstrating outside the
Supreme Court. But there they were last Monday, at the opening of
the term, raising cries of "Discrimination!" Nineteen people,
including Kweisi Mfume, head of the NAACP, deliberately got
The 1,000-plus demonstrators were protesting the Supreme
Court's record in hiring black and Hispanic clerks. Of the clerks
who have worked for the currently sitting justices, only 1.7% have
been black and 1.2% have been Hispanic. "This is not ambiguous,"
says Rep. Albert R. Wynn (D., Md.). "This is clear
[discrimination]. The numbers speak for themselves."
But do they?
Ethnic groups don't distribute themselves evenly throughout
the workforce. Asians occupy more than 40% of the freshman class
at the University of California at Berkeley. Jews, 2% of the full-
time working population, make up 26% of the nation's law
professors. Jews also tend to make up about 30% of the Supreme
Court clerks, which means non-Jewish whites are underrepresented
among th e clerks compared to the population at large. Asians are
slightly overrepresented, at 4% of the clerks compared to 3% of the
overall population. Yet surely this isn't a result of vast pro-
Asian, pro-Jewish or anti-Gentile bigotry. Disproportion does not
Civil rights law recognizes this. In discrimination cases
involving skilled jobs, the racial makeup of those hired must be
compared not against the general population, but against the
qualified labor pool. As a matter of both law and logic, it's
irrelevant to a discrimination claim that the clerks' racial
breakdown doesn't match the country's. What matters is the
difference between the makeup of the pool of clerks and the pool of
top law school graduates -- the group from which the justices
select their clerks.
What's the racial mix of this top graduate pool? No one
knows. Law schools generally won't reveal this information and
certainly the court's critics haven't presented any such data, even
though -- again, as a matter of both law and logic -- the burden is
on them to do so.
Still, we can estimate. The two best predictors of law school
success, for students of all races, are Law School Admissions Test
(LSAT) scores and undergraduate grade point averages. They aren't
perfect predictors, but they're very good, which is why all the top
law schools use them. So we can infer that on average the top law
school graduates probably have predictors not far from those of the
top law school entrants.
And here we do have some data. In 1997, American Lawyer
magazine reported on the racial makeup of law school applicants who
would be eligible for admission to Boalt Hall, Berkeley's law
school. Of the applicants who had LSATs above 164 (the 92.3rd
percentile) and GPAs above 3.50 -- thresholds well below the
"average" of the students receiving offers from Berkeley -- only
0.6% were black and 1.6% were Hispanic. The Law School Admissions
Council's National Statistical Report provides similar numbers.
Boalt Hall is generally ranked around eighth among the
nation's law schools. The Supreme Court usually hires clerks who
were among the top five or 10 graduates of Harvard, Yale, Stanford
and Chicago; who were among the top three or so students at the
other top 10 schools; or who were first in their class at the next
On average, these clerkship contenders almost certainly had
much higher grades and LSATs than the average Boalt Hall applicant.
One can infer then that among this pool of applicants who are most
qualified to clerk for the Supreme Court, there'd probably be no
more than about 0.6% blacks and 1.6% Hispanics, and perhaps even
fewer. So on close examination, the supposed evidence of th e
court's discrimination vanishes.
Could it be, though, that the court, while not intentionally
discriminating, is using unnecessarily exclusive criteria? No; the
criteria the justices consider -- mainly law school grades, but
also work experience, publications, letters of recommendation, and
the like -- are extremely relevant to the job. They don't
perfectly predict future performance, but they're the best predicto
rs the justices have, given the need to winnow 34 clerks from tens
of thousands of recent graduates.
It's doubtful that the soft factors, letters of recommendation
for instance, are biased against blacks or Hispanics; but say the
court abandons them. Say further that the court relaxes its
standards and starts selecting randomly from the top 10% of the
classes in the top 20 law schools (which would be a bad idea, but
let's set that aside). Even with those changes, there's no reason
to think that a substantially higher percentage of this group would
be black or Hispanic.
The sad fact is that the court faces something that candid law
school admissions officers call a "pool problem." Largely because
of the failings of the K-12 educational system, too few blacks and
Hispanics are acquiring the skills needed to compete effectively at
the highest levels of higher education generally and of legal
education in particular. Some indeed do get these skills, and
many eventually become excellent lawyers. But in very competitive
hiring processes such as the selection of Supreme Court clerks, the
results, while fair, reflect the pool problem with which legal
One could, of course, argue that the court should prefer
applicants of certain races even if they are somewhat less
qualified than their competitors of other races, because this would
add "diversity" or be more "representative." But should the
Supreme Court really start discriminating against more qualified
clerkship applicants simply because of the color of their skins?
What's more, as a Jew, I'm troubled that a serious attempt at
ethnic balancing would require that there be at most one Jewish
clerk every year, rather than the current average of about 10.
While no one is suggesting such limits now, this is where the logic
of seeking a clerkship cadre that "looks like America" would lead.
At least proponents of overtly preferential hiring acknowledge
that they call for the court not to stop discriminating but to
start discriminating -- albeit in what some think is a good cause.
Most of the court's critics don't make this acknowledgement. They
accuse the court of bias, but rely on numbers that prove nothing.
And they try to respond to a complex problem -- why is K-12
education so badly failing poor, disproportionately black and
Hispanic, students? -- by making a simplistic accusation that's as
unproductive as it is unfair.