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."
