Supreme Court clerks screen the thousands of petitions asking the Court to hear cases, advise their Justice on emergency applications, prepare bench memoranda before oral argument, and draft the opinions that come after the Justices vote. Each of the nine active Justices hires four clerks for a one-year term, so roughly 36 clerks rotate through the building every year, and the work they do shapes much of what the Court produces. What Supreme Court clerks do is largely invisible to the public, but it drives the Court’s output from the first petition read in chambers to the final opinion handed down in summer.
Reading and Screening Cert Petitions
The largest single task is sorting through petitions for certiorari, the requests asking the Court to take a case. The Court receives between 7,000 and 8,000 of these every term and agrees to hear oral argument in only about 80.1United States Courts. Supreme Court Procedures Someone has to read the rest and explain why the Court shouldn’t take them. That someone is almost always a clerk.
Most Justices participate in the “cert pool,” which divides incoming petitions among the participating chambers rather than duplicating the work across all of them. A single clerk drafts a pool memo for each assigned petition, summarizing the facts, the lower court’s reasoning, and the legal question presented, and then recommending whether to grant or deny review.1United States Courts. Supreme Court Procedures That memo circulates to every Justice in the pool. Not all Justices participate; as of recent terms, at least two have opted out and have their own clerks independently review every petition. That approach gives those chambers a second set of eyes but demands significantly more work from their clerks.
Pool memos carry real weight. A clerk who recommends denial on a petition that actually involves an important unresolved question, such as a split among the federal circuits, can effectively bury a case. Justices know this, which is why the memos are reviewed by a clerk in each participating chamber who adds notes and flags disagreements with the recommendation. The system is imperfect, but it’s the only practical way to process a docket this large.
Handling Emergency Applications
Not everything moves at the pace of full briefing. Emergency applications, which include requests for stays of execution, injunctions, and other urgent relief, arrive on compressed timelines and sometimes require action within hours. The Clerk’s Office files them and forwards them to the Justices, posting electronic versions on the public docket as soon as they are received.2Supreme Court of the United States. A Reporter’s Guide to Applications Pending Before the Supreme Court of the United States Applications can come in after business hours, and the Court can act on them at any time.
Clerks are central to this work. When an emergency application lands, a clerk in the relevant chambers (often those of the Justice assigned to that circuit) must quickly digest the record, identify the legal standard for emergency relief, and advise the Justice on whether to grant, deny, or refer the application to the full Court. The work has grown more prominent as the Court’s “shadow docket,” the informal term for orders and decisions issued without full briefing or oral argument, has expanded in recent years. For clerks, it means the job doesn’t respect weekends or evenings.
Preparing Bench Memoranda Before Argument
Once the Court grants certiorari and the parties finish briefing, each clerk prepares a bench memorandum for their Justice. It’s a detailed internal document that lays out the competing legal arguments, identifies strengths and weaknesses on each side, and maps the relevant precedents.
A good bench memo does more than summarize the briefs. It anticipates where the opposing side’s argument is most vulnerable and suggests lines of questioning the Justice might pursue at the lectern to test those pressure points. Clerks spend substantial time tracing how earlier rulings interact with the current dispute, flagging cases where the reasoning cuts in different directions. The goal is to make sure the Justice walks into the courtroom already knowing the terrain. Some Justices treat the memo as a starting framework; others treat it almost as a script.
Drafting Opinions After the Vote
After oral argument, the Justices meet in a private conference to discuss and vote on the case. No clerks are present. The Chief Justice, if in the majority, assigns the opinion to a particular Justice; otherwise the most senior Justice in the majority assigns it. Once the assignment is made, the writing begins.
The assigned Justice typically gives their clerk direction on the opinion: the holding, the reasoning, which precedents to emphasize, and which counterarguments to address. The clerk produces an initial draft. This is not ghostwriting in the way people sometimes assume. The Justice stays involved throughout, editing and revising, sometimes tearing apart the draft and starting over. Multiple rounds are normal. Every citation, every footnote, every characterization of a prior case gets scrutinized. The Justice has final say over every word.
Clerks in other chambers are busy too. When a draft majority opinion circulates, dissenting and concurring Justices and their clerks read it carefully and begin crafting responses. A strong dissent can sometimes persuade a Justice in the majority to change their vote, which reshuffles the entire opinion assignment. Clerks working on these responsive opinions do their own independent research to find authority supporting their Justice’s position. The back-and-forth between chambers can continue for months on the most contentious cases.
Keeping It All Confidential
The confidentiality expectations are absolute. What happens in the Justices’ private conference, including how they voted, what they said, and who disagreed, stays there. Clerks do not attend conference, but they learn the results immediately afterward and work with that information daily. Leaking deliberations, draft opinions, or vote counts is a career-ending breach. The 2022 leak of a draft opinion in a major case was treated as a historic scandal precisely because it had essentially never happened before. Former clerks carry these confidentiality obligations for life.
One point about the governing rules is worth clearing up, because it’s often misstated: Supreme Court employees are not covered by the Code of Conduct for Judicial Employees that governs the rest of the federal judiciary. That code explicitly excludes employees of the Supreme Court.3United States Courts. Guide to Judiciary Policy Vol. 2A Ch. 3 – Code of Conduct for Judicial Employees Supreme Court clerks are instead subject to standards established by the Justices themselves. In November 2023, the Court publicly adopted its own Code of Conduct for the first time, formalizing ethics principles that had previously been understood but unwritten.
Who Does This Work
Federal law gives every Justice the power to hire law clerks and set their salaries.4Office of the Law Revision Counsel. 28 USC 675 – Law Clerks and Secretaries Active Justices hire four clerks per term; retired Justices typically hire one. Nearly every successful candidate graduated near the top of a class at an elite law school and already completed at least one year clerking for a federal appellate judge before arriving.1United States Courts. Supreme Court Procedures That prior clerkship functions as a proving ground, and the recommending appellate judge’s endorsement carries enormous weight.
Each Supreme Court term begins, by statute, on the first Monday in October.5Supreme Court of the United States. The Court and Its Procedures Clerks generally arrive a few weeks before that date to get up to speed and stay through the following summer, when the final opinions are handed down. That’s roughly a twelve-month commitment, and it’s widely considered the most intense year in a young lawyer’s career.