It doesn’t matter where the next Supreme Court justice went to law school

It doesn’t matter where the next Supreme Court justice went to law school

Paul Waldman — Read time: 4 minutes

Columnist

As we wait to learn the identity of President Biden’s nominee to the Supreme Court, we’re hearing debates about what kind of person she should be. And amid the stupid and offensive arguments, one reasonable-sounding critique has been offered: Shouldn’t we have more justices who didn’t go to Ivy League schools?

The question has been raised before, since eight of the nine current justices attended law school at either Harvard or Yale (Amy Coney Barrett, the exception, got her law degree at Notre Dame). It’s come up again because, while the two names being most often mentioned are Ketanji Brown Jackson (Harvard Law ‘96) and Leondra Kruger (Yale Law ‘01), influential Rep. James E. Clyburn (D-S.C.) is advocating for J. Michelle Childs, who attended the University of South Carolina.

“We run the risk of creating an elite society,” Clyburn says, though the horse is pretty much out of the barn on that one. “We’ve got to recognize that people come from all walks of life," Clyburn continues, "and we ought not dismiss anyone because of that.”

His fellow South Carolinian, Republican Sen. Lindsey O. Graham, agreed. The court should “have a little more balance, some common sense on it,” he said. “Everybody doesn’t have to be from Harvard [and] Yale. It’s okay to go to a public university and get your law degree.”

That is undoubtedly true. An Ivy League pedigree is often used as a signal of intelligence and achievement, which it can be, but isn’t always. Plenty of smart people attended school elsewhere, and more than a few average intellects found their way into the Ivies, say because their father gave a well-timed $2.5 million donation.

But if we accept that diversity of perspectives is important on the court — which we should — does it follow that diversity of alma maters will be meaningful?

For example, Sonia Sotomayor and Brett M. Kavanaugh both graduated from Yale Law School (as did Samuel A. Alito Jr. and Clarence Thomas). Does that mean they bring to their jurisprudence the same narrow view of the law, U.S. society and the effects of their decisions? Not at all.

They had profoundly different experiences growing up, for one thing. Kavanaugh is a child of the Washington elite: Both his parents were lawyers, and young Brett attended tony Georgetown Prep. His accountability-free frolicking there with other aspiring dudebros did nothing to impede his easy slide into Yale as an undergraduate and then to its law school, where he nestled comfortably with the other members of his social class.

Sotomayor, on the other hand, grew up in a housing project in the Bronx, the child of Puerto Rican immigrants. Though she was valedictorian in high school, she initially struggled to fit in at Princeton, where there were few Latino students and not a single full-time Latino professor. She had to work hard to succeed in places where most of her peers brought more privilege than she did, which surely informs the perspective she brings to her work.

Or another example: Does Barrett bring an outlook identifiably different from that of her five conservative compatriots on the court because she went to Notre Dame? Has she asked a different kind of question during oral arguments, or made different kinds of written analyses, or arrived at different decisions? Not that anyone can tell.

The most important uniformity of thought apparent on the court is probably the one that the conservatives share because to one degree or another they are all the products of a pipeline established by the conservative movement. It identifies promising conservatives in law school, then it moves them through jobs in Republican administrations, clerkships with Republican judges, a few years at a white-shoe corporate law firm, and then onto the bench.

If their decisions are appropriately conservative and they’re still young, they may be considered for the high court. By the time they are, they’ve been immersed in the conservative legal world for a couple of decades — meeting all the same people, attending all the same gatherings, reading all the same articles and adopting the same “philosophy.”

There may be some variation around the edges among them — for instance in whether they think U.S. law should be yanked to the right rapidly or methodically and carefully — but their destination is the same. (There’s a pipeline for liberals too, albeit one not as highly organized.)

Don’t get me wrong — I’m all for jettisoning the idea that all the good lawyers went to Harvard or Yale. There’s a big pool of graduates out there to choose from. But we shouldn’t fool ourselves into thinking that in and of itself, putting people on the court who didn’t attend an Ivy League school will get us very far.