Is it getting harder for women to become Supreme Court Justices?

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May 5, 2021

Good morning, Broadsheet readers! Janet Yellen causes a stir, a tampon-removing glove is what’s wrong with the VC world, and a quirk of Supreme Court clerk hiring may be holding women back. Have a wonderful Wednesday!
– Devil in the details. One of the most frustrating aspects of the structures that keep women and people of color out of positions of power is how often they’re propped up by seemingly innocent quirks of the system—just some line item that outside observers might not even notice.
This Politico piece exploring a shift in the qualifications Supreme Court Justices look for when choosing their clerks is a prime example. For decades, most justices hired clerks after they’d graduated from (a top) law school and then done a one-year clerkship with a lower court judge (until the ’70s, most didn’t even do that the clerkship, going right the Court from law school.) But in recent years, writes Sarah Isgur, who clerked on the Fifth Circuit and served as a Justice Department spokeswoman during the Trump administration, more Justices have been hiring clerks with multiple lower court clerkships under their belts (61% of those currently clerking fit that bill).
The problem with this minor shift? Well, Isgur argues it can pose a challenge for young women who are thinking about having kids, since taking maternity leave during a one-year clerkship is difficult, and the need to do multiple clerkships pushes back the timeline for joining a law firm (a frequent post-clerkship move)—yet another work environment where taking time away from the job to start a family is tricky. She also notes that clerkships don’t pay particularly well, so spending years in them is likely not an option for anyone who needs to start paying off that law school debt, stat. The result: 68% of Supreme Court clerks are men (as of 2019) and 85% are white (as of 2017).
Now, if you’re asking yourself why we should care so much about law clerks, consider this: “Former Supreme Court clerks are at the top of the list for judgeships later in life, and such a clerkship is all but required to teach at a top law school or to work in places like the Office of the Solicitor General at the Department of Justice. It is no coincidence that the last four justices to be confirmed to the Supreme Court all had previously clerked at the court themselves.”
I’m not a lawyer (clearly!), so I’m curious what readers who work in the field think of this analysis. (Email me if you have thoughts to share.) For me, it’s just another reminder that, to change the status quo—and who benefits from it—we need to constantly examine and question even the small details of how our power structures work.
Kristen Bellstrom
kristen.bellstrom@fortune.com
@kayelbee
The Broadsheet, Fortune’s newsletter for and about the world’s most powerful women, is coauthored by Kristen Bellstrom, Emma Hinchliffe, and Claire Zillman. Today’s edition was curated by Claire Zillman.

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