No Justice In These Pay Scales

The enormous signing bonuses have caused a bizarre collision of two ethical rules. The Supreme Court's Rule 7 bars any former clerk from participating "in any professional capacity in any case" before it for two years after they leave. That includes helping or advising their firms on upcoming cases before the court. So the specific expertise they were hired for is on ice for two years.

On the other hand, two years seems to have become the unofficial number for the young associates themselves, many of whom agree informally that if they stick around the law firm for that period of time, they can't be accused of having taken the money and run. They'll have fulfilled an ethical obligation.

The big bonuses create a huge incentive for young Supreme Court clerks to, well, take the money and run. After two years in private practice, they can pay down or even pay off their law school debts, and leave the firm holding the bag. Phillips concedes that the bonuses have undermined a "natural sorting process," wherein some former clerks once gravitated to government service, and others left the court for academia.

"I'm sort of glad we didn't have that kind of bonus in my day," says Tim Wu, who clerked for Justice Stephen G. Breyer in 1999 and now teaches at Columbia Law School. "Money like that leaves you no option. In my case, it would have ruined my career."

Now law firm recruiters have to worry about finding the clerks who really want to stick around, and they may have to settle, as Phillips says, for using those years "as a chance to persuade the others that private practice is the place to be." Other firms hope that if the clerks stay for a few years and bill their 2,000 hours, the firms will still break even on the proposition.

Some firms, notes Lat, have stopped pursuing the Supreme Court clerks and now spend their recruiting dollars on what he calls the near-misses. "For every one of the 36 smartest law kids," he says, "there is another equally smart law kid who just had a bad interview" for a court clerkship. And if law firms give them bonuses, "they get all the benefits of a knockoff Prada purse: They perform the same function, they look great and you know they'll do a great job."

Maybe there really isn't anything wrong with these massive bonuses. They aren't necessarily dragging young lawyers out of government or public service. Several former clerks who have signed up with firms suggest precisely the opposite: It gives them the freedom to pay off their loans and then teach or work at the Justice Department after a few years. If the clerks are happy, their firms are satisfied and the clients are okay with it, who's really harmed?

Well, Justice Anthony M. Kennedy, for one. Last month he told the Senate Judiciary Committee: "Something is wrong when a judge's law clerk, just one or two years out of law school, has a salary greater than that of the judge or justice he or she served the year before."

The fact is that if the market is working to drive associate salaries higher and higher, the lack of a market is now ensuring that a first-year associate at a law firm who clerked on the court will earn more next year than Justice Antonin Scalia ($203,000), Special Prosecutor Patrick J. Fitzgerald ($140,300) or a well-paid public defender ($75,000).

And whether or not those salaries make you weep in sympathy, it's hard to dispute the justices' claim that the opportunity cost of staying on the bench has become almost unmanageable. It's one thing to insist that serving one's country should be its own reward. But as college costs loom and boilers break down, one has to wonder whether it makes perfect sense to pay astronomical sums to young lawyers to argue and influence (or in some cases not argue and not influence) Supreme Court justices who have moved past envy and into resentment.

dahlia.lithwick@hotmail.com

Dahlia Lithwick covers legal affairs for Slate, the online magazine at www.slate.com.