The Washington PostDemocracy Dies in Darkness

The ‘cloistered’ Harvard-Yale law monopoly on the Supreme Court

The Supreme Court justices gather for an official group portrait in June 2017. (AP)

So much for diversity on the Supreme Court — at least when it comes to the education of the nine justices.

There are, according to the American Bar Association, slightly more than 200 accredited law schools in the United States. But assuming the newly nominated federal judge Brett M. Kavanaugh will be confirmed by the Senate to succeed the retiring Anthony M. Kennedy, all nine justices of the nation’s highest court would have attended law school at either Yale or Harvard universities.

Brett Kavanaugh is nominated by Trump to succeed Supreme Court Justice Anthony M. Kennedy

And all but one would have received their law degree from one of those two Ivy League schools. Ruth Bader Ginsberg earned a law degree from another school — Columbia — after transferring from Harvard Law School.

Obviously Harvard and Yale are excellent schools — even if they take different approaches to teaching the law, with Yale more theoretical.

But the idea there is such little diversity on the court when it comes to law school is a problem. In 2016, Dan Glickman, a former secretary of agriculture and former congressman who is now a senior fellow at the Bipartisan Police Center, explained why on the Bloomberg Government blog:

Now, both of these prestigious institutions rank among the best universities in the world. Clearly, no matter what side of the aisle you come from, we all want intelligent people on the Supreme Court. But these schools do not have a monopoly on producing smart lawyers. When an individual is able to, through force of intellect, matriculate and excel at Harvard or Yale Law they prove beyond a shadow of a doubt they are among the top minds in America’s legal community. However, there is a certain cloistered nature to joining this elite community. People of this pedigree often live in a world that does not necessarily parallel the life experiences of most Americans. And that is where more diversity is needed.
What’s needed on the court are qualified individuals whose personal experiences vary from those of their colleagues. Take, for example, the ruling on Citizens United. This was an extremely long opinion that was full of legalese and short on practical understanding of the impact of unlimited money on political campaigns. I can’t help but think that if more of the justices had more direct experience in politics they may have thought twice about couching their ruling in purely legal scholarship and has more sense about the real life impact of their decision. A diversity of law school background does not guarantee a diversity of personal experience, but more likely than not it does create a deeper reservoir of personal experiences and relationships.

Incidentally, nearly all the Supreme Court justices attended Ivy League universities as undergraduates:

Chief Justice John G. Roberts Jr. went to Harvard as an undergraduate and earned a law degree there.

Associate Justice Ruth Bader Ginsburg earned a bachelor’s degree from Cornell University and started at Harvard Law but transferred to Columbia Law School when her husband got a job in New York City.

Associate Justice Clarence Thomas attended College of the Holy Cross as an undergraduate and earned a Yale law degree.

Associate Justice Stephen G. Breyer earned a bachelor’s degree at Stanford University and a law degree at Harvard.

Associate Justice Elena Kagan attended Princeton University as an undergraduate and earned a Harvard law degree.

Associate Justice Samuel A. Alito Jr. also attended Princeton University as an undergraduate and earned a Yale law degree.

Associate Justice Sonia Sotomayor went to Princeton, too, but graduated from Yale Law.

Associate Justice Neil M. Gorsuch attended Columbia University as an undergraduate and Harvard Law School.

The newly nominated justice, Brett Kavanaugh, attended Yale as both an undergraduate and a law student.

Ivy League domination in the top levels of the federal government are hardly new.

Before Donald Trump was elected president, the previous four presidents had attended either Harvard or Yale as an undergraduate student or in one of the graduate schools — Barack Obama, George W. Bush, Bill Clinton and George H.W. Bush. In fact, Harvard has graduated more U.S. presidents (eight) from one of its schools than any other university, and Yale has graduated the second most (five). Trump himself attended the University of Pennsylvania, an Ivy League school.

While some argue it doesn’t matter where the justices went to school, others say that it does. This 2010 NPR story, written by Larry Abramson, put it this way:

The chief flaw with the Yale-Harvard test is that it leaves out people who couldn’t get into those two schools — which is to say, most of us.
In 1970, Sen. Roman Hruska defended high court nominee G. Harrold Carswell against the charge that he was mediocre. “There are a lot of mediocre judges and people and lawyers. They’re entitled to a little representation, aren’t they?” Hruska said.
Apparently, they are not.

(Correction: Elena Kagan graduated from Harvard Law, not Yale, as it said in an earlier version. Sotomayor graduated from Yale, not Harvard.)