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Noah Feldman: There's a lot of Harvard and Yale on the Supreme Court. And that's OK

Noah Feldman, Bloomberg Opinion on

Published in Op Eds

Eight of the nine Supreme Court justices went to Harvard or Yale law schools. So did nearly a fifth of the federal judiciary. This rankles some politicians, watchdog groups and others who see it as an outrageous manifestation of elitism that needs to be changed, given how much power this small group has over the lives of 329 million Americans.

Or does it reflect a more benign aspect of current elite higher education, namely the broad range of students accepted? Above all, does it matter for the functioning of the federal judiciary?

Seen in historical context, the presence of so many justices from just two law schools is striking. Consider the great justices appointed by Franklin Roosevelt.

Justice Hugo Black attended a two-year program at the University of Alabama School of Law, where 40 students were taught by a grand total of two professors. Justice Robert Jackson spent a single year at Albany Law School, and became a member of the bar by apprenticing in a law office.

Justice Felix Frankfurter made it to Harvard Law School as an immigrant (the last immigrant to serve on the court) who started at City College of New York. Justice William O. Douglas went to Columbia Law School after attending Whitman College in Washington state, paying his way across the country by feeding sheep on the train.

Today’s justices are mostly products of elite undergraduate colleges as well as Harvard and Yale law schools. (Disclosure: I got my law degree at Yale and teach law at Harvard.) Only Clarence Thomas, who went to Holy Cross as an undergraduate, and Amy Coney Barrett, who went to Rhodes College, were not Ivy Leaguers. Barrett went Notre Dame Law School, where she finished first in her class — the only justice without a Harvard or Yale degree.

Yet the justices’ college experiences do not fully reflect their social backgrounds. To illustrate this, take the stories of the two justices who are arguably the most conservative and most liberal on the court.

Samuel Alito, author of Dobbs v. Jackson Women's Health Organization, the decision that overturned Roe v. Wade, and Sonia Sotomayor share almost nothing in the way of jurisprudence or ideology. But they share an identical educational resumé: Both graduated summa cum laude from Princeton University, then went to Yale Law School, where they served on the law journal.

Alito and Sotomayor were academic standouts in a system designed, in part at least, to identify intellectual distinction — measured by being good at school. But neither came from anything close to elite backgrounds.

Alito, who started at Princeton in 1968, was the son of an Italian American immigrant from Calabria and grew up outside of Trenton, New Jersey. He had little in common with the boarding school-educated Protestants who were socially dominant at the university at the time. As his Princeton classmate and law school roommate Mark Dwyer later memorably put it:

"We Catholic guys were different — we were cultural Catholics, repressed, a bit shy, aware of being in a non-Catholic universe … At Princeton, it was never that we had intellectual limitations. But it was obvious that the preppies from Andover and Exeter had been invited there and fit in with the traditional culture of the Ivies."

Sotomayor stood out even more from her college peers. Her parents had moved from Puerto Rico to the Bronx, where she lived in public housing. Upon arrival at Princeton, she said she felt like “a visitor landing in an alien country.”

Sotomayor started at the school in 1972, the year Alito graduated, only a few years after it started admitting women. She has said that she struggled academically in her first year. When she figured it out, she began to shine, and ended up winning Princeton’s Pyne Prize, given to the student “who has most clearly manifested excellent scholarship, strength of character and effective leadership.”

 

Alito and Sotomayor became members of the elite by virtue of their education. Seen this way, the two have a good deal in common with Frankfurter and Douglas.

The same could also be said of most of the current justices. Thomas grew up in poverty. Most of the others came from fairly ordinary middle-class circumstances — including Chief Justice John Roberts and Justice Ketanji Brown Jackson, both of whom went to Harvard College and Harvard Law School.

None of the nine justices had parents who themselves attended elite colleges or graduate schools. Only Neil Gorsuch (whose mother was administrator of the Environmental Protection Agency under Ronald Reagan) and Brett Kavanaugh (whose grandfather went to Yale) belonged to recognizably exclusive circles before attending college.

When you hear the word “elite” from conservative U.S. politicians, it also conveys “liberal” (leaving aside that many of those same politicians went to these schools themselves). It is true that the great majority of the faculty and most students at Harvard and Yale Law lean left. Yet the six conservatives on the Supreme Court today were all clearly able to form and hold their own views, even when those beliefs were countercultural.

Indeed, demonstrating conservative views through their elite legal educations has functioned as a marker of ideological commitment that Republican presidents find appealing when they are deciding whom to nominate to the court. Ever since the early 1990s, Republicans have wanted to avoid appointing justices like Anthony Kennedy, Sandra Day O’Connor and David Souter, all of whom turned out to be moderate despite conservative expectations that they would move the court to the right. The ability to stick to one’s beliefs in a majority liberal environment early on is probably a pretty good indicator that someone is unlikely to take a centrist turn later.

As for career experience, it is true that justices today come from a much more limited number of professions than they used to. None ran federal agencies, unlike Douglas, for example, who was chairman of the Securities and Exchange Commission. None served in a legislature, unlike O’Connor, who was majority leader of the Arizona Senate. None was even a state attorney general, as O’Connor and Souter were. Most were lawyers in some combination of government service and private practice. Two, Kagan and Barrett, were law professors.

Yet the narrowness of their careers isn’t a function of their elite educations. Plenty of graduates of top colleges and law schools are involved in politics or activism or nonprofits or corporations. One reason they aren’t considered for the Supreme Court is that those undertakings invite controversy; the confirmation process in recent years has favored nominees with more restrictive experiences.

The pool of possible nominees is further limited by the specialized knowledge required on the modern court. Being school smart isn’t sufficient to be a good justice. But it may well be necessary, since today’s Supreme Court doctrine is highly complex.

The justices write highly technical opinions, aided by law clerks who mostly also went to elite schools. You could acquire those skills outside the Ivy League, as Barrett did. Yet it’s hard to argue that justices can be chosen without any attention to the abilities that make people successful students.

Probably the best argument against appointing so many justices and judges from Harvard and Yale is that equally smart, accomplished people who were also good in school should not be slighted in the selection process. Yet this is not an argument against elite-educated justices per se.

It’s a reminder that academic excellence transcends social class — a lesson that Harvard and Yale and other top institutions have learned is the key to staying on top.

©2022 Bloomberg L.P. Visit bloomberg.com/opinion. Distributed by Tribune Content Agency, LLC.

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