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In other respects, though, the court has become much less diverse. In recent decades, almost all of its justices have been graduates of just two law schools — Yale and Harvard. On this count, Jackson’s pedigree is the standard one. She went to Harvard College and then Harvard Law School, where she was an editor on the Law Review. Senator Lindsey Graham, who stumped hard for the South Carolina federal judge J. Michelle Childs (J.D., University of South Carolina), tweeted tartly that “The Harvard-Yale train to the Supreme Court continues to run unabated.” (Respondents noted that Graham had failed to raise this objection to either Neil Gorsuch, Harvard J.D. ’91, or Brett Kavanaugh, Yale J.D. ’90.)
Why is educational pedigree so important on the court? Should it be? In Bloomberg, Noah Feldman wrote that Jackson’s “experiences as an African American woman and as someone who had an uncle imprisoned on a drug felony will matter — as will her elite educational background.” I spoke with Feldman, a professor of law at Harvard Law School, about legitimacy, meritocracy, the Federalist Society, the role of clerkships, and how Jackson’s education matters.
How did this kind of institutional dominance come about?
There’s an interesting history here. In the early years of the court, law schools played an insignificant role because there weren’t any. Laws schools at scale are really a product of the latter part of the 19th century. So you don’t get systematically law-school-educated justices until the late 19th century. The last justice to be appointed not to have graduated from a law school was Robert Jackson, who was admitted to the bar by a practice of apprenticeship, which was an option at the time. He didn’t go onto the court until 1941.
From the time that the justices started having gone to law schools, there was always an over-representation of eastern law schools and particularly Harvard Law School. But it remained the case in the middle of the 20th century that there were great justices who had come from very different kinds of legal educational backgrounds.
It’s really in the Reagan administration when the norm — and I would call it a norm now — of justices having gone to just a handful of law schools, mostly Harvard and Yale, became really dominant. Stanford does figure briefly there. William Rehnquist and Sandra Day O’Connor went to Stanford in the same class — they were one and two in the class. And we now know he asked her to marry him, which she declined to do.
Reagan, kind of remarkably — the guy who went to Eureka College — appointed Antonin Scalia, who went to Harvard; O’Connor, who went to Stanford, and Anthony Kennedy, who also went to Harvard. And George H. W. Bush, maybe more predictably, since he was himself the graduate of an elite university, appointed David Souter and Clarence Thomas — Harvard and Yale respectively. Since that time, the only Supreme Court nominee who actually made it to a vote — I’m leaving out Harriet Miers, who didn’t make it to a vote — who did not attend Harvard or Yale law schools was Amy Coney Barrett, who went to Notre Dame, where she later became a professor. And she kind of counts as an elite because she clerked for the Supreme Court.
And she had the political support of this significant network of conservative religious intellectuals. It’s almost as if only the support of God Himself can get you onto the court if you’re not a Harvard or Yale alum.
That is a reasonable interpretation. Another way to think of her, though, is as a bit like John Paul Stevens, who went to Northwestern’s law school, where he finished first in his class and, according to legend, achieved the highest grade-point average in the history of the school. He was just considered such a remarkable and unusual standout person in the legal world that it seemed quite natural. But that was right before the era I was talking about — he was appointed by Gerald Ford.
Barrett was such a standout intellect among conservatives that I think no matter where she had gone to law school she would have had the same trajectory. Of course she had the support of religious intellectuals, but she also had the support of nonreligious Federalist Society intellectuals, who are a very tight-knit group. Everybody at the upper echelons of the Federalist Society is well-known and well-vetted by personal relationships in that network. And her reputation was of special intellectual brilliance within that very conservative wing of the society.
There are at least two kinds of objections one might make to the current composition of the court. One might feel, in a populist spirit, that there should be more state law-school graduates — that for reasons of democratic legitimacy, it shouldn’t be populated by graduates from a tiny cluster of top-ranked schools. Alternatively, one might suspect that the intra-elite domination by Harvard and Yale represents some kind of corruption. Where’s Penn? Where’s Stanford? How is it just these two schools? Is that a function of healthy meritocratic selection, or is it that these schools have illegitimately captured the networks of influence in ways that their near peers haven’t done — in which case there’s something elitist, in the pejorative sense, about their dominance.
Both of those schools made a strategic decision in the ‘60s and ‘70s to seek a broad representation in their class, so there would be diversity among their excellence. The goal was to create a funneling effect where students from all kinds of backgrounds and institutions would end up at Harvard or Yale. Seen from that perspective, it makes some degree of sense that a disproportionate number of students from those law schools end up as Supreme Court clerks.
There are of course students who got into Harvard or Yale and choose to go to one of the other first-class law schools. But if you look at the statistics, it’s relatively less likely. Am I saying that law-school admission is a good proxy for being a Supreme Court justice? No. That would be preposterous. Is it some kind of a first cut? It’s some kind of a first cut.
All of that said, could one expand the catchment, as it were, of the federal judiciary writ large, to draw from more law schools? Yes. Could one expand the catchment of the Supreme Court? Yes.
Some of this has to do with the fact that legal education is extremely hierarchical, in part because the legal system is extremely hierarchical. Duncan Kennedy was saying this long ago. There’s a cultural affinity between the hierarchicalism of the courts and the hierarchical structure that emerged over time in legal education. Hierarchicalism in legal education is not justifiable to the same degree — but neither is it official. The U.S. News rankings have no foundation in law, as it were. They reflect a partly arbitrary, partly reasoned, set of cultural commitments.
Could it be broader? Yes. Should it be broader? Probably. Is it an accident that it’s not broad? No. Is it a function of elitism? It depends on how you define elitism. If elitism means a certain set of institutions narrowing it down, then yes, that’s a kind of elitism. But if it means that elite status is being perniciously consolidated to exclude others, I’m not at all sure that that’s what’s going on.
These are institutions working hard to pick the strongest students, and then judging those students very intensively over three years, and then sending on just a tiny number of those to prestigious clerkships. From those clerkships, there is access to certain kinds of government positions, and to certain kinds of mentorship.
Now, does that have a path dependent effect? Yes. Ketanji Brown Jackson went to Harvard Law School. She then clerked for Judge Patti Saris on the district court of Massachusetts. And Judge Saris — who also went to Harvard Law School — is a brilliant jurist, very reasonable, very thoughtful, and also very well liked. And then Jackson went on to clerk for Bruce Selya of the First Circuit, and then to clerk for Stephen Breyer. None of that’s a coincidence. You can be 100 percent certain that Breyer called Saris and said, “What do you think?” But that means that Saris worked with Jackson for a full year as her law clerk, that she knew her extremely well and said, “She’s amazing, she’s going to be a great law clerk.”
Is that an elite network? In a sense, yes. Is it also a network that measures ability? Yes. Saris has several law clerks every year, and the great majority of them did not go on to clerk for Breyer.
So clerkship is an essential part of this winnowing process.
Why did this court become a court to which so many clerks are getting nominated? It’s a function of three things. One is that it’s getting harder and harder to confirm Supreme Court justices. For that reason, presidents want people with bulletproof resumes. There are all kinds of objections that can be made to a nominee, and a resume is the easiest thing to vet.
The second reason is that, especially in the Federalist Society, there’s a lot of personalized vetting that starts at an early age. By clerking on the Supreme Court as a young conservative, you are connected to Federalist Society circles, and it’s not that many years after that that you’re starting to angle for a federal judgeship if that’s the path you’ve chosen. It makes some sense that those anglers would know people. That’s what happened with Barrett. If she hadn’t clerked at the Supreme Court, there would be really no way, even as a professor at a good law school, to write her way into enough prominence without becoming a touchstone of grand controversy.
The third element is the work of the court. The opinions have gotten longer and longer, and doctrinal technicalities have gotten deeper and deeper. What that means is that to be a good Supreme Court justice increasingly requires that you be an extremely skilled technical lawyer — much more than was true in the 1940s, say, when the vast majority of the doctrines that we rely on today were inchoate. Constitutional law was much more freeform. Now, especially in constitutional cases, the doctrines are a lot more complicated, and as a consequence both parties want justices who they think can hold their own against the justices that are there.
This is shared between conservatives and liberals. Both the appointments of the right and the left have this quality. You might have expected one side to be more elitist than the other. But that’s not the case. This is, as it were, a bipartisan consensus. And that’s some reason to proffer the hypothesis that it has a lot to do with the confirmation process and with the nature of the work.
Elite education is under a lot of suspicion now — critiques of elite meritocracy have been coming thick and fast from the left and the right. Do you think that will affect the court’s perceived legitimacy? For both James Clyburn and Lindsey Graham — the latter, somewhat surprisingly, stumped hard for J. Michelle Childs to be Biden’s nominee — Childs’s being a University of South Carolina law alum was a point in her favor. Graham even employed a kind of populist rhetoric about it. He said that he was at the dump and that “three guys in pick-up trucks came up to me” and said that Child “‘seems like a nice lady. I’m tired of this Harvard-Yale stuff.’”
The court has many challenges to its legitimacy right now, but I don’t think this is at the front of them. Right now, conservatives are very happy about the court because of its composition, and they seem entirely unconcerned with where the justices went to law school. As for liberals, none of the critics of legitimacy were upset that the court that decided Obergefell was all Harvard and Yale folks.