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June 30, 2015




Hugo Black had a very strong preference for tennis players too. Steve, we understand your point here but you do come across as sanctimonious.

Enrique Guerra-Pujol

Please! Give the Chief Justice a break ...


Would you also require the justices you like to adhere to all of the rules regarding non discrimination, or, do you simply trust and believe they do?

(If you believe they do, you might want to serve on the admissions and faculty appointments committees for a while.)

In any event, this post is a "two fer": you get to smear by implication, inference and supposition both Cruz and Rehnquist.

Well played!


Also an issue for SOC clerks - she required yoga.

Orin Kerr

Steve, two thoughts.

1) I had a clerkship interview with Rehnquist in 1998, and yes, he did ask about tennis.

2) It seems like a stretch to say that any hiring practice Rehnquist would have been troublesome because of the ADA. Maybe the practice was troublesome because it was unfair, law aside. We don't know enough about the practice to say. But as you say, the ADA didn't apply. Assuming the practice existed, I don't think the troublesomeness derives from a judge's refusal to follow the "spirit" of a law that does not apply.

Jennifer Hendricks

It's rather more than not following the spirit of a particular law. I'm surprised to see so much resistance to the idea that a judge ought to be hiring a law clerk on the basis of at least plausible qualifications for the job, as opposed to the candidate's ability to serve as some sort of personal retainer for the judge.

I know that the relationship between judges and clerks historically has had the quality of personal retainership, but that was before the taxpayers were paying for the clerks. If you can't get anyone to play tennis with you, hire a personal trainer on your own dime.


Justice Breyer plainly has a gender quota in his hiring. Is that illegal?

Derek Tokaz

If we're looking at just the spirit of the law, then we need to consider that it only applies to employers with 15 or more employees. Of course the Supreme Court has more than that, but for the 'spirit' question, I think we should look at each individual justice as being an employer.

The next step in the analysis would be to ask why there is a minimum headcount before the ACA kicks it. The likely explanation is that Congress didn't want to burden small companies (with presumably limited means) with additional regulations. Not that complying with the ADA is particularly burdensome, but that it's probably costly to get counsel on what the ADA requires of you. If this is the reason, we can say that a Supreme Court justice doesn't have such limitations, and ought to comply regardless of the headcount rule, just as he should comply regardless of the law not applying to the Court.

But, what if there's more to the headcount requirement than that? Congress may have recognized that in small companies there is a greater need to match not only job skills, but personalities. (And here I'll note the similar headcount require for other anti-discrimination laws.) If this is the case, then I think a justice would be in compliance with the spirit of the law to say he prefers a clerk who plays tennis.

We can imagine any number of other hobbies a justice might want which wouldn't have a physical disability barrier, such as playing chess, or reading mystery novels. The headcount rule would serve to say "You can choose to hire based on whatever hobbies you want, but once you get to 16 employees you've got enough flexibility to have someone else there be your tennis partner."

Steve L.

Why would you look at each individual justice as an employer? You certainly would not look at each individual supervisor as a separate employer in other contexts.

In any case, hobby preference is not a BFOQ in any other context.

Let's just say that I am surprised at the unwillingness to look at people with disabilities in the same light as other protected groups. Would anyone use the "justice-as employer-with-a-low-headcount" excuse for declining to hire female clerks? I didn't think so.

Deborah Merritt

Justice Rehnquist did not ask me about tennis when I interviewed with him in 1980--but I suppose he wouldn't have bothered if he played only with other men. I know so little about tennis that I don't even know the pros/cons of same-sex and mixed-sex games.

Rehnquist did note that I was clerking for Judge Ruth Bader Ginsburg (during her first year on the DC Circuit) and that their opinions differed on many matters; he asked if that would bother me.

I accepted a clerkship with Justice Stewart before I heard back from Rehnquist, so I don't know if he would have risked a non-athletic, liberal female in his chambers. He and Ginsburg later developed a very strong bond of respect and affection when she was appointed to the S Ct.

To close the loop on athletics and clerkships, Justice Stewart (who did not seem at all athletic) retired two weeks before I would have started my clerkship. The newly appointed Justice O'Connor hired me and the other Stewart clerks.

Early in her tenure, Justice O'Connor asked me to organize a morning exercise class for her and other women at the Court. It was open to all women, including the telephone operators (we still had them then!) and other staff. It was an interesting counterpoint to the all-male, all-clerks-and-Justice basketball games led by Justice White. I'm proud to say that we had a much lower injury rate.

But anon, this class was neither yoga nor required. My female co-clerk did not participate, and the class proved too elementary for the Justice. She used it as a "cool down" after attending a more rigorous class outside the Court at 6 a.m.

On a more serious note, discrimination of all sorts was rampant in 1980--and is still very much an issue today. Bias against disabilities is one of our biggest challenges. Regardless of what the law says, we should all keep challenging ourselves to work against these biases.

Derek Tokaz


It comes down to what you think the purpose of the headcount requirement is.

If it's just to save small firms the cost of dealing with regulations, then the headcount is irrelevant to what the justices ought to do. Maybe that is the rationale; perhaps someone familiar with the legislative history could weight in. (If this were the reasoning though, it'd make a lot more sense to base it on firm revenues, profits, or total amount spent on payroll, rather than just headcount.)

There are other possible reasons for the headcount requirement though. It could be in order to give more flexibility in terms of hiring based on being a good cultural fit. If this is the rationale, then we do need to consider how much a justice is like one of several supervisers at a bigger company, and how much they are like their own small firm. If they are like their own small firm, then the cultural fit reasoning kicks in, and the justice would not be violating the spirit of the law because the spirit is to make such accommodations.

Going the other way, the law might not be meant to have a carve out for small firms, but rather is meant only to apply to larger companies. This could be because we generally like liberty, but understand that discrimination by large institutional players can have a huge detrimental affect. When a 2-man shop engages in discriminatory practices in hiring its 1 employee, we're not terribly concerned. The guy's a jerk, but the externalities of that jerkiness are tiny. If Walmart engages in discriminatory practices, we can see how that has a massive impact on the economy. Suddenly certain classes of people are shut out of more than 2 million jobs. So, if the ADA and other anti-discrimination laws are more about preventing big employers from discriminating, things with SCOTUS get very tricky. It's a pretty tiny employer, not many people are going to be affected by its discriminatory practices. But on the other hand, it's a very unique employer. When Joe's 2-man shop discriminates, you can go over to Tim's and Jane's and Raul's and a hundred others, and find a non-discriminatory shop to work in; if SCOTUS discriminates, there's not another SCOTUS to work for. Of course it gets trickier when it's just one justice discriminating, or if multiple judges are discriminating but in different ways.

So there you go. I was looking at the headcount because if we want to know about the spirit of the law, it helps to figure out know... what the spirit of the law is. The headcount requirement can (possibly) tell us something about that.


In my day, it was widely (though quietly) observed among the clerk-applicant pool that Chief Justice Rehnquist appeared not to hire Jewish clerks. (And no - that can't be explained by saying there weren't enough conservative Jewish applicants--just compare the list of Scalia clerks to those of WHR.). So I'm guessing that he wasn't particukarky concerned about any legal or moral imperative not to discriminate.

Dana Lubet

All that I can say is that at least there was no golf involved.

Dana Lubet, DDS


Just a small detail, but tennis is, for the most part an upper-middle class sport in the US, so if true, the requirement that clerks play tennis remotely well would tend to exclude those from less well off backgrounds.


Mac, just how many Supreme Court clerks come from poor families, tennis playing or not?



And perhaps it would be better if they were more representative....


The biggest discrimination with Supreme Court clerks is law school. Since 1980, 54% of clerks have come from just 4 law schools (Harvard, Yale, Chicago and Virginia). These schools award approximately 3% of the JDs in the US.

While you would expect that the best law schools would produce the most clerks, it is clear that there is a lot of bias here. For example, only 16% of clerks come from law schools west of the Mississippi river, despite 42% of the population.

While other professions exhibit bias towards top schools, nothing would seem to approach law in general and supreme court clerks in particular. Clearly, schools are being used as screeners and qualified candidates are being shut out simply on where they went to school (even very good schools).

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