Policy

A Josh Hawley lawyer began clerking for Justice Thomas. Then Thomas came out swinging for Big Tech.

"It might not raise a red flag, but it certainly might raise an eyebrow."

Justice Clarence Thomas.

Just how much impact, if any, Divine had on Thomas' recent turn against tech is almost impossible to know for certain.

Photographer: Al Drago/Bloomberg via Getty Images

During the Supreme Court's most recent term, Justice Clarence Thomas fired two very public warning shots at Big Tech. First, in an unprompted statement last fall, he called for Section 230 to be reined in, saying the law had been interpreted too broadly by the courts. He followed that up months later with a concurring opinion that suggested Facebook and others ought to be regulated as common carriers.

The two pieces of writing didn't escape the notice of tech policy watchers. What did go relatively unnoticed, though, was just who was working in Thomas' chambers at the time: a clerk named Josh Divine, who was coming off of a stint working for one of Big Tech's biggest critics and a vocal proponent of Section 230 reform, Senator Josh Hawley.

As far as Supreme Court clerks go, Divine's resume is somewhat unique. The road to Supreme Court clerkship usually involves working as a lower court clerk or spending a year or two at a big law firm. Prior to working for Hawley, Divine had done both. But he was also the only clerk this term to have come straight from Capitol Hill, having recently served as deputy counsel in Hawley's Senate office. According to experts on Supreme Court clerkships, Divine may be one of few people to have ever followed that Senate-to-Supreme Court trajectory at all. "It's not the norm," said Todd Peppers, a professor at Washington and Lee University and author of several books on Supreme Court clerks.

"That's relatively unusual," said Artemus Ward, a professor at Northern Illinois University's College of Law, who has also written extensively about clerkships.

Just how much impact, if any, Divine had on Thomas' recent turn against tech is almost impossible to know for certain. Supreme Court clerks and the justices they serve are notoriously tight-lipped, and neither Divine nor the Supreme Court's public information office responded to Protocol's request for comment. But the similarities between Thomas' writing and Divine's own public comments on Section 230 are striking.

Mirror, mirror

In April 2020, just months before he left Hawley's Senate office for Thomas' chambers, Divine laid out his argument for Section 230 reform in a teleforum for the Federalist Society. The talk was substantially more succinct and conversational than Thomas' statement on Section 230 in the Malwarebytes case later that year.

But Divine's speech and Thomas' statement mirror each other almost paragraph-for-paragraph and point-for-point. Their logic follows the same order, using the same examples, down to a recent case involving Snapchat, which both Thomas and Divine cited as an example of Section 230 gone wrong.

Here's Divine on Snapchat:

Snapchat has a product called speed filter. It basically allows you to take a picture, and then part of the picture displays your current speed. Now, most people recognize that this kind of tool is primarily attractive to reckless drivers, and indeed encourages reckless driving. Well, under current doctrine, it's entirely protected. Now, the problem with this is that a plaintiff who sues somebody over something like speed filter, they're not complaining about specific speech. They're complaining about a reckless platform design decision.

And here's Thomas' statement, months later:

Another [court] granted immunity on a claim that a social media company defectively designed its product by creating a feature that encouraged reckless driving. A common thread through all these cases is that the plaintiffs were not necessarily trying to hold the defendants liable "as the publisher or speaker" of third-party content. Nor did their claims seek to hold defendants liable for removing content in good faith. Their claims rested instead on alleged product design flaws—that is, the defendant's own misconduct.

Both Divine and Thomas also focus on the different liabilities traditionally faced by publishers, like newspapers, and distributors, like newsstands. At the crux of both of their arguments is the idea that while Section 230 may protect platforms from being treated as publishers, courts have improperly expanded it to prevent platforms from being treated as distributors, as well.

Here's Divine at the teleforum:

When you consider the whole text, I think it's really tough to conclude that Section 230 eliminates distributor liability and does so implicitly when the same statute elsewhere recognizes and imposes that very same kind of liability.

And here's Thomas:

It is odd to hold, as courts have, that Congress implicitly eliminated distributor liability in the very Act in which Congress explicitly imposed it.

The similarities continue throughout. But experts on both clerkships and Section 230 caution that these and other overlaps aren't some grand evidence of Divine pulling the strings behind the scenes. After all, the history of Section 230 is what it is, and Divine wouldn't be the first to make these arguments, especially not among members of the conservative Federalist Society. "I'm a little leery of the idea that a bunch of extraordinarily bright, but green and experienced law clerks are running the show," Peppers said.

But it also wouldn't be the first time a clerk with substantial expertise in an area had a potentially heavy hand in drafting a justice's argument, Ward said: "It's not too much of a stretch to think about that. Clerks do all the writing for the justices."

"My first thought is that Justice Thomas would be silly not to take advantage of a clerk's expertise," said Lawrence Baum, a professor of political science at Ohio State University, who also focuses on the Supreme Court.

Key advisors

The topic of Supreme Court clerks' influence has been the subject of extensive study and fascination for decades. As early as 1957, former chief justice William Rehnquist wrote that "[t]here is the possibility of the bias of the clerks affecting the Court's certiorari work."

More recently, Peppers co-authored a 2008 paper that studied law clerks' influence on Supreme Court Justices' decisions and concluded that there is "a clear correlation between clerk partisanship and the Justices' voting — one that persists in the face of even strong controls for the ideology of the Justice."

Clerks contribute to the court in a few important ways, Peppers said. They review cert petitions and prepare memoranda on them, giving clerks at least some say in what cases the court takes up. They also prepare first drafts of opinions. In his 2006 book, "Sorcerers' Apprentices," Ward found that about a third of clerks surveyed said they had written drafts that were then published unedited during their clerkships.

"My research showed they were quite influential," Ward said. "They're key advisors who absolutely have influence on their bosses in the same way key staffers in Congress or at the White House have influence on their bosses."

Even opinions that are heavily edited by the justices — and most are — often still bear the mark of the clerk who wrote the first draft. "There's a big difference between starting off with a blank piece of paper and starting off with a draft written by someone else," Peppers said.

Which is what makes Divine's political pedigree worthy of note. One reason clerks have historically had very little real-world work experience to speak of, Ward said, is to prevent them from having undue influence on the court. "What you don't want if you're a justice is to have a clerk who tries to act like a justice," Ward said.

But lately, the tides have begun to shift, with more and more clerks taking the position after working in lower courts or even in major law firms for years. It may be unusual for someone like Divine, who has worked in politics, to take such a position, but it's not completely singular. Last year's group of new clerks included someone who'd worked for a stint at the White House under President Trump and a former assistant attorney general of Texas.

Ward views this change as a natural evolution of an ongoing trend. "As partisanship ramps up and we get more hyper-partisan in Washington, it may be that justices are looking for more of that — more assurance that the clerks are going to be co-partisans with them," Ward said.

That's especially true of Thomas, who is known to be both extremely partisan in his selection of clerks and extremely close with his clerks. While other Justices have hired across party lines, Thomas has been open about the fact that he does not. "I won't hire clerks who have profound disagreements with me," he once said, according to a 2010 New York Times story about partisanship in the clerkship. "It's like trying to train a pig. It wastes your time, and it aggravates the pig."

Hiring someone with a clear history in politics may help eliminate any doubt about where they stand. "If they have a more extensive record, a justice can be more reassured that we're on the same side and would be working toward a common end," Baum said.

All of this makes it impossible to attribute Thomas' stance on Section 230 directly to Divine's influence. At a time of escalating tensions between conservatives and tech giants, Thomas' views on tech regulation could be coming from any number of places. It could be, in fact, that Thomas selected Divine as a clerk precisely because Thomas was already interested in reforming Section 230 and saw a fellow traveler in Divine.

"Sometimes when people wring their hands and worry about law clerk influence, you forget these are extraordinarily smart people who have had a long time to think about their views," Peppers said.

Peppers is reluctant to attribute Thomas' turn against tech to Divine, but he acknowledges that the timing of the clerkship is "suggestive."

"It might not raise a red flag," Peppers said, "but it certainly might raise an eyebrow."

Ward tends to agree, but he adds that there is reason for concern about the creeping influence of politics in the courts. It's not that he believes the Supreme Court is some kind of apolitical body. The idea that the law and politics are separate, Ward said, is "bogus."

But he believes that the more the court is influenced by highly experienced, politically savvy staffers who are forbidden from speaking publicly and who are not vetted by Congress, the less accountable the court becomes as an institution. "That," Ward said, "should trouble all of us."

Policy

The Senate antitrust bill just created some very weird alliances

Democrats and Republicans have found the tech reform debate scrambles traditional party politics — and Tim Cook and Ted Cruz have found themselves chatting.

The Senate Judiciary Committee advanced a bill on Thursday that could remake the tech industry.

Photo: PartTime Portraits/Unsplash

Strange alliances formed ahead of Thursday's vote to advance a key antitrust bill to the Senate floor, with frequent foes like Sens. Amy Klobuchar and Ted Cruz supporting the measure, and prominent Democrats including California Sen. Dianne Feinstein pushing back against it.

Ultimately the bill moved out of the Senate Judiciary Committee by a vote of 16-6 after a surprisingly speedy debate (at least, speedy for the Senate). Even some of the lawmakers who called for further changes agreed to move the bill forward — a sign that the itch to finally regulate Big Tech after years of congressional inaction is intensifying, even as the issue scrambles traditional party politics in a way that could threaten its final passage.

Keep Reading Show less
Ben Brody

Ben Brody (@ BenBrodyDC) is a senior reporter at Protocol focusing on how Congress, courts and agencies affect the online world we live in. He formerly covered tech policy and lobbying (including antitrust, Section 230 and privacy) at Bloomberg News, where he previously reported on the influence industry, government ethics and the 2016 presidential election. Before that, Ben covered business news at CNNMoney and AdAge, and all manner of stories in and around New York. He still loves appearing on the New York news radio he grew up with.

Sponsored Content

A CCO’s viewpoint on top enterprise priorities in 2022

The 2022 non-predictions guide to what your enterprise is working on starting this week

As Honeywell’s global chief commercial officer, I am privileged to have the vantage point of seeing the demands, challenges and dynamics that customers across the many sectors we cater to are experiencing and sharing.

This past year has brought upon all businesses and enterprises an unparalleled change and challenge. This was the case at Honeywell, for example, a company with a legacy in innovation and technology for over a century. When I joined the company just months before the pandemic hit we were already in the midst of an intense transformation under the leadership of CEO Darius Adamczyk. This transformation spanned our portfolio and business units. We were already actively working on products and solutions in advanced phases of rollouts that the world has shown a need and demand for pre-pandemic. Those included solutions in edge intelligence, remote operations, quantum computing, warehouse automation, building technologies, safety and health monitoring and of course ESG and climate tech which was based on our exceptional success over the previous decade.

Keep Reading Show less
Jeff Kimbell
Jeff Kimbell is Senior Vice President and Chief Commercial Officer at Honeywell. In this role, he has broad responsibilities to drive organic growth by enhancing global sales and marketing capabilities. Jeff has nearly three decades of leadership experience. Prior to joining Honeywell in 2019, Jeff served as a Partner in the Transformation Practice at McKinsey & Company, where he worked with companies facing operational and financial challenges and undergoing “good to great” transformations. Before that, he was an Operating Partner at Silver Lake Partners, a global leader in technology and held a similar position at Cerberus Capital LP. Jeff started his career as a Manufacturing Team Manager and Engineering Project Manager at Procter & Gamble before becoming a strategy consultant at Bain & Company and holding executive roles at Dell EMC and Transamerica Corporation. Jeff earned a B.S. in electrical engineering at Kansas State University and an M.B.A. at Dartmouth College.
Workplace

Should your salary depend on meeting DEI goals?

Diversio just raised $6.5 million to use AI to fix DEI.

Laura McGee has spent her entire career thinking about diversity and business. At one point, she helped lead the Trump-Trudeau Council for Advancement of Women, working with the prime minister and president to build a plan to grow the North American economy through diversity. During that time, she kept hearing from CEOs that they cared about diversity and wanted to improve, but that they had “no data and no metrics.”

That was when she decided to build Diversio: a platform that makes data collection, as well as acting on it, “super simple.”

Keep Reading Show less
Michelle Ma

Michelle Ma (@himichellema) is a reporter at Protocol, where she writes about management, leadership and workplace issues in tech. Previously, she was a news editor of live journalism and special coverage for The Wall Street Journal. Prior to that, she worked as a staff writer at Wirecutter. She can be reached at mma@protocol.com.

Boost 2

Can Matt Mullenweg save the internet?

He's turning Automattic into a different kind of tech giant. But can he take on the trillion-dollar walled gardens and give the internet back to the people?

Matt Mullenweg, CEO of Automattic and founder of WordPress, poses for Protocol at his home in Houston, Texas.
Photo: Arturo Olmos for Protocol

In the early days of the pandemic, Matt Mullenweg didn't move to a compound in Hawaii, bug out to a bunker in New Zealand or head to Miami and start shilling for crypto. No, in the early days of the pandemic, Mullenweg bought an RV. He drove it all over the country, bouncing between Houston and San Francisco and Jackson Hole with plenty of stops in national parks. In between, he started doing some tinkering.

The tinkering is a part-time gig: Most of Mullenweg’s time is spent as CEO of Automattic, one of the web’s largest platforms. It’s best known as the company that runs WordPress.com, the hosted version of the blogging platform that powers about 43% of the websites on the internet. Since WordPress is open-source software, no company technically owns it, but Automattic provides tools and services and oversees most of the WordPress-powered internet. It’s also the owner of the booming ecommerce platform WooCommerce, Day One, the analytics tool Parse.ly and the podcast app Pocket Casts. Oh, and Tumblr. And Simplenote. And many others. That makes Mullenweg one of the most powerful CEOs in tech, and one of the most important voices in the debate over the future of the internet.

Keep Reading Show less
David Pierce

David Pierce ( @pierce) is Protocol's editorial director. Prior to joining Protocol, he was a columnist at The Wall Street Journal, a senior writer with Wired, and deputy editor at The Verge. He owns all the phones.

Enterprise

Why low-code and no-code AI tools pose new risks

The low-code trend has come to AI, but skeptics worry that gifting amateurs with Easy-Bake Ovens for machine-learning models is a recipe for disaster.

The same things that make low- and no-code AI so appealing can pose problems.

Image: Boris SV/Moment/Getty Images

“No code. No joke.”

This is the promise made by enterprise AI company C3 AI in splashy web ads for its Ex Machina software. Its competitor Dataiku says its own low-code and no-code software “elevates” business experts to use AI. DataRobot calls customers using its no-code software to make AI-based apps “AI heroes.”

Keep Reading Show less
Kate Kaye

Kate Kaye is an award-winning multimedia reporter digging deep and telling print, digital and audio stories. She covers AI and data for Protocol. Her reporting on AI and tech ethics issues has been published in OneZero, Fast Company, MIT Technology Review, CityLab, Ad Age and Digiday and heard on NPR. Kate is the creator of RedTailMedia.org and is the author of "Campaign '08: A Turning Point for Digital Media," a book about how the 2008 presidential campaigns used digital media and data.

Workplace

How 'Dan from HR' became TikTok’s favorite career coach

You can get a lot of advice about corporate America on TikTok. ‘Dan from HR’ wants to make sure you’re getting the right instruction.

'Dan from HR' has posted hundreds of videos on his TikTok account about everything from cover letters to compensation.

Image: Dan Space

Daniel Space downloaded TikTok for the same reason most of us did. He was bored.

At the beginning of the COVID-19 pandemic, Space wanted to connect with his younger cousin, who uses TikTok, so he thought he’d get on the platform and try it out (although he refused to do any of the dances). Eventually, the algorithm figured out that Space is a longtime HR professional and fed him a post with resume tips — the only issue was that the advice was “really horrible,” he said.

Keep Reading Show less
Sarah Roach

Sarah Roach is a reporter and producer at Protocol (@sarahroach_) where she contributes to Source Code, Protocol's daily newsletter. She is a recent graduate of George Washington University, where she studied journalism and mass communication and criminal justice. She previously worked for two years as editor in chief of her school's independent newspaper, The GW Hatchet.

Latest Stories
Bulletins