The Ivy League Supreme Court

Every member of the Supreme Court graduated from an Ivy League Law School. That kind of homogeneity is not healthy.

Supreme Court Justices 2

In The New Republic, Dahalia Lithwick argues that the Supreme Court has become too dominated by the Ivy League:

The current justices are intellectually qualified in ways we have never seen. Compared with the political operators, philanderers, and alcoholics of bygone eras, they are almost completely devoid of bad habits or scandalous secrets. This is, of course, not a bad thing in itself. But the Court has become worryingly cloistered, even for a famously cloistered institution

(…)

Paradoxically, the Court that has gutted minority voting rights inShelby County and limited women’s access to birth control inHobby Lobby has never looked more like the country whose disputes it adjudicates. It includes three women, an African American, the first Hispanic, two Italian Americans, six Catholics, and three Jews. On the federal bench, President Obama has appointed more women, minorities, and openly gay judges than any president in history.

But while we have gained diversity of background, we haven’t gained diversity of experience. A study released in February revealed that 71 percent of Obama’s nominees had practiced primarily for corporate or business clients. The Supreme Court is even more homogeneous, because the modern confirmation gauntlet only lets one kind of person through. Post-Robert Bork, a nominee must not have too obvious an ideological agenda, as some judges and almost all elected officials do. Post-Harriet Miers, a prospective justice must possess not just a stellar résumé but also a track record of judicial rulings and legal writings from which future decisions can be confidently deduced.

The result has been what Professor Akhil Reed Amar of Yale Law School calls the “Judicialization of the Judiciary,” a selection process that discourages political or advocacy experience and reduces the path to the Supreme Court to a funnel: elite schools beget elite judicial clerkships beget elite federal judgeships. Rinse, repeat. All nine sitting justices attended either Yale or Harvard law schools. (Ginsburg started her studies in Cambridge but graduated from Columbia.) Eight once sat on a federal appellate court; five have done stints as full-time law school professors. There is not a single justice “from the heartland,” as Clarence Thomas has complained. There are no war veterans (like John Paul Stevens), former Cabinet officials (like Robert Jackson), or capital defense attorneys. The Supreme Court that decided Brown v. Board of Education had five members who had served in elected office. The Roberts Court has none. What we have instead are nine perfect judicial thoroughbreds who have spent their entire adulthoods on the same lofty, narrow trajectory.

This is not a new observation, of course. It was noted when President Obama made his most recent Supreme Court appointment four years ago, picking Elena Kagan to replace the retiring John Paul Stevens and thus creating a court consisting entirely of people who had graduated from either Harvard, Yale, Princeton or Columbia for at least law school and, in several cases, at the undergraduate as well. This was despite the fact that the Kagan nomination did break the recent trend of Supreme Court appointments in that Justice Kagan had not served as a Judge on a Federal Circuit Court of Appeals prior to her elevation like each of her other eight colleagues, but had instead been Solicitor General of the United States. Education, though, is not the only manner in which the nation’s highest court has become unusually homogeneous. For the first time, there is not a single Protestant on the Court, instead the court consists entirely of Catholics and people of the Jewish faith, with Catholics making up the clear majority. Additionally, there are no veterans on the Court for the first time in decades, although that is also true of the United States Congress to some degree. Finally, the are four Justices who grew up in New York City on the high Court, which appears to be an historic first as well. As Lithwick notes, this kind of homogeneity among the Justices is unusual from the standpoint of history.

When this argument was being batted around four years ago, UC-Berkley Law School Dean Christopher Edley pushed back against the idea that there’s something objectionable about this with an argument that basically boils down to the idea that we want the best of the best dealing with the complicated issues that the Supreme Court has to deal with on a regular basis:

Our political culture values a common touch, but our legal culture values uncommon smarts. Supreme Court nominations are a shotgun marriage of the two, but it should not be a marriage of equals.

For a court nominee or a political candidate, there are communications strategies to finesse a blinding résumé. If you want to explain to the public why you support a nerdy nominee (embrace it, Elena), you may want to talk about her Average Jane swellness. A senator walks out with the newest pick and grins into the cameras saying: “This is a fine person. Very likable. Loves fishing.” Translation: “Pretty darned smart, but she seems human (enough), so don’t hate me if I decide to support her.”

(…)

[L]egal culture is different. We’re enforcing the Constitution and preserving fundamental rights, for goodness sake. Federal judges, unlike those in most states, are well insulated from politics because they are appointed for life and never face election. Though political concerns do intrude — the people who nominate and confirm judges are politicians who worry about political consequences, after all — we hope that’s not the only thing the politicians think about.

At the Supreme Court level, it’s all about finding oracles for Olympus. While it’s frowned upon when judges fire spitballs at colleagues, what matters is intellectual horsepower, not office-chat charm. It is wisdom and analysis, not personal experiences. If a judge’s life is elite in the sense of excellence, that’s fine. In fact, that may be the point. At every turn the nominee has excelled in a meritocratic system, one that is selective yet far more open than in generations past. But if a judge is elite in an exclusive and exclusionary sense, then we have a problem that’s both political and jurisprudential.

On some level, of course, Edley’s argument is quite persuasive. It is far better, for example, that our current Supreme Court, and indeed the large majority of our current Federal Judiciary, especially at the Circuit Court of Appeals level, is made up of honest, smart, experienced people who have received the best legal training that our country can offer and who are different from many of their predecessors in the 19th and 20th Century who were blatantly political appointments, or people whose names were put forward because they were best friends with the President or powerful Members of Congress. To be sure, those years gave us many great Justices — John Marshall, Joseph Story, John Marshall Harlan of Plessy v. Ferguson dissent fame, and Oliver Wendell Holmes Jr. just to name four off the top of my head — but they also gave us many, many ‘clunkers’ and blatant political appointments that didn’t quite measure up to the requirements of the office to which they were appointed. On balance, though, I think it’s fair to say that today’s Supreme Court, and most of the Judges at the Court of Appeals level, constitute the best qualified legal minds in the country, and that’s a good thing given the issues that these men and women have to deal with on a regular basis.

That being said, I don’t think it necessarily follows that this means that the Ivy League must be the exclusive source for Supreme Court Justices, or a majority of the Circuit Court of Appeals Judges for that matter. Why is it that Yale and Harvard Law Schools, located within about a two hour drive of each other at most, are the source of all of our Supreme Court Justices? What about Stanford, Columbia, the University of Michigan, or any of the other schools ranked the top ten, or even the top 25 among American Law Schools? Is it really the case that none of these other 23 schools are capable of producing the kind of elite graduates that would make good Justices and Judges at the highest levels of our legal system? The idea that this could possibly be true is, indeed, quite absurd.

Lithwick goes on to argue that the educational homogeneity on the Supreme Court also leads to a lack of perspective that can be reflected in the way that a jurist approaches a case:

In the coming months and years, this group of Ivy-trained Washington insiders will have to decide whether Texas voters who don’t have driver’s licenses and are required to take three buses across town to pay $30 for a voter ID have effectively been disenfranchised. They will determine whether women who need to travel 300 miles to procure an abortion (women who may lack cars, or paid time off, or money to spend on hotels) face an “undue burden.” But some of the same justices who will bar empathy from those considerations forget that they do evince empathy when they side with those beleaguered “sidewalk counselors,” or multimillionaire campaign donors, or the owner of a mega-chain of craft stores who believes his religious freedoms have been impinged. All of us import our values and experiences into our decision-making. The double-whammy at the current Court is that the justices are no longer allowed to acknowledge it, and that the pool of those with whom they unavoidably identify is so dangerously small and privileged.

When the next court vacancy occurs, there will be lists of brilliant, Yale- and Harvard-trained jurists to choose from. But there will also be many accomplished lawyers toiling in elected office and legal-aid clinics and state-school faculties. Progressives need to identify those prospects and to push them forward. The alternative is ceding the court to ever-more dazzling minds, while seeing less of our own realities in its jurisprudence.

Personally, I tend to disagree with the idea that Judges ought to let themselves be influenced by “values and experiences” outside of the facts of the case before them, and the law that they are being called upon the interpret and apply to those facts. That being said, the law has never been a cut and dry business where there is always a correct answer to a given question. Instead, there are nuances and ways that facts and be interpreted that different people will see differently. To some degree, this is why appellate courts at all levels are composed of more than one Judge hearing a specific case. In part, that exists so that each of the Judges can serve as something of a check on the others by providing a different perspective on a particular point of law, or on how that point of law applies in a particular case. The value in this would seem to be obvious, and certainly seems preferable to the idea of an appellate court made up of a single judge who would have the final word over all appeals. It’s an idea that goes back to long before the American Revolution, and, indeed, the idea of an appellate court where more than one judge hears and decides a case is nearly universal. Given that, there would seem to be some value in a Supreme Court that is somewhat more diverse than it is today, and this can obviously be done without making any sacrifices in terms of the qualifications of the Justices. We could start with what Lithwick suggests, the next time there is a vacancy on the Court, perhaps the President ought to look at a list that includes people that graduated from someplace that isn’t Harvard or Yale. It couldn’t hurt, and it might actually help a bit.

FILED UNDER: *FEATURED, Education, Law and the Courts, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. edmondo says:

    The Best and the Brightest.

    (sarcasm off)

  2. Pinky says:

    I don’t know of a field in which the clout of the Ivy League hasn’t diminished in the past 10-15 years.

  3. stonetools says:

    Affirmative action for non Ivy League candidates? An interest in promoting diversity in a shop closed to non-privileged outsiders? Say it ain’t so, Doug….

    I think we ought to look, not only at schools outside Ivy League, but also at life experiences. A Ginsburg (graduated Columbia Law School, BTW) is bringing a lot more to the table than her sterling credentials. She was a leader in the legal struggle for women’s rights.
    Thurgood Marshall knew up close and personal, what the struggle against white supremacy was in a way no legal brief or Ivy League degree could ever convey.
    If we look at the most influential Chief Justice of the 20th century, it’s probably Earl Warren-ex-governor of California and graduate of no law school whatsoever.

    So , yeah, we should be looking beyond formal credentials, especially for appointments to the Supreme Court. But of course, we already do. What people are really looking for in the Supreme Court Justice is really political and philosophical fealty, let’s face it. It’s that and not credentials or life experience why Alito on the Supreme Court, for instance.

  4. Pinky says:

    @stonetools: Not fealty to the Constitution?

  5. stonetools says:

    @Pinky:

    I’m descriobing what is, not the Platonic ideal. Frankly, I don’t think the Platonic ideal has ever been strictly adhered to, which is why there was no Supreme Court Justice Learned Hand.

  6. JKB says:

    Thomas Sowell said it best, “The greatest advantage in having gone to Harvard is not being impressed by people who went to Harvard”.

  7. Dave Schuler says:

    The Ivies are good schools but they’re not the only good schools.

    One of the implications is that we’re delegating selection of justices to the admissions departments of a very small number of schools. That’s a lot of trust.

  8. HarvardLaw92 says:

    @stonetools:

    it’s probably Earl Warren-ex-governor of California and graduate of no law school whatsoever.

    Warren graduated from Boalt Hall (the law school at Cal-Berkeley) in 1914 with an LL.B and was admitted to the California bar that same year.

    Prior to the early 1970s, the LL.B was more or less the standard degree conferred by law schools. The JD didn’t become the norm until 1971, when Yale stopped conferring the LL.B altogether. Warren spent 14 years serving as a District Attorney in California. He also served as California’s Attorney General prior to being elected governor, so it’s difficult to characterize him as a politician who had no experience with the law.

  9. sam says:

    @Pinky:

    Not fealty to the Constitution?

    Well, you have your Constitution and I have mine. And you’re wrong.

  10. SKI says:

    @Pinky:

    Not fealty to the Constitution?

    Whose Constitution?

    Words can have radically different meaning based on the reader. Those who forget this are typically those who have been privileged enough to have their version been the standard; those who haven’t been “the other”.

  11. Tyrell says:

    This is no surprise and points up the alarming control that powerful groups have on the government. It is well known that some schools, including Harvard and Yale, have secret societies that exert powerful influence on the alumni including placing them in offices of high government, finance, corporations, and military.
    This clearly explains many of the “Supreme” Court’s decisions. It all fits.
    Shocking, frightening.

  12. Andre Kenji says:

    @stonetools:

    So , yeah, we should be looking beyond formal credentials, especially for appointments to the Supreme Court.

    The problem are not formal credentials per se. Everyone agrees that some of best jurists in the United States(Like Frank Easterbrook or Richard Possner) had zero chances of becoming Supreme Court Justices. Both parties want predictable nominees with no paper trail – in some sense, everyone want mediocre Supreme Court Justices.

    The choices of Ivy League candidates have more to do with elitism and political patronage – most Supreme Court Justices had powerful friends on the Senate. Elena Kagan had friends in Washington, Diane Wood did not have enough of them.

  13. C. Clavin says:

    This SCOTUS is a freaking embarrassment.
    The only corruption possible is a direct monetary transaction…corporations get to pick and choose when the corporate veil applies and when it doesn’t…and of course there is Bush v. Gore.
    Who in the fwck cares where they went to school?

  14. HarvardLaw92 says:

    @Dave Schuler:

    I’m not sure that I buy that. The primary source pool of SCOTUS nominations these days, at least for the last 30 years or so, has become the circuit courts of appeals, most especially the DC Circuit.

    Just looking at the DC Circuit’s judge pool, I do see 6 judges who were educated at Harvard Law, but I also see 2 from UNC – Chapel Hill Law, 2 from UVA Law, 2 from University of Chicago Law, 2 from Yale and one each from the law schools at UCLA, Stanford, University of Michigan, and University of Pennsylvania.

    The 2nd Circuit is similar – 6 Yale, 2 NYU, 3 U Michigan, 4 Harvard, 2 Cornell, 2 Columbia, and one each from Fordham, Connecticut, Syracuse and UVA.

    That seems a pretty decent distribution of Tier I’s and a few Tier II’s, which is realistically where you should expect judges to arise from. While probably not the most egalitarian ideal, it’s unlikely that you are ever going to see appellate circuit judges or Supreme Court justices who were educated at schools like Campbell or the University of Mississippi.

  15. HarvardLaw92 says:

    @Andre Kenji:

    (Like Frank Easterbrook or Richard Possner)

    Easterbrook has a serious problem with people skills, and Posner, brilliant as I agree that he is, has a tendency to open his mouth and let occasionally outrageous things come out of it.

  16. DrDaveT says:

    Personally, I tend to disagree with the idea that Judges ought to let themselves be influenced by “values and experiences” outside of the facts of the case before them

    It’s called “context”. What life is like for Americans is, vitally, part of “the facts of the case before them” — and most of them are totally freaking clueless about those facts.

    Seriously, how can you expect a rational decision about “undue burden” when none of them have any notion of what the practical everyday difference will be, depending on whether a given law is upheld or not? That’s not a question you can answer just by understanding the Constitution really, really well — you also have to know a lot about the everyday lives of ordinary people. The current Court is woefully lacking in that particular expertise.

  17. gVOR08 says:

    I think I’m more concerned that the court is three Jews and six Catholics. Catholic seems to have become an expected compromise on abortion. Nothing against Catholics per se, but adding a couple protestants would be more representative. They’re not all fundies. I’d like to see an avowed atheist or agnostic or two, but Overton Window.

  18. Guarneri says:

    @Tyrell:

    Secret societies, eh? You mean like uniformly doing the thumbs up and down thingy?

  19. sam says:

    @Andre Kenji:

    everyone wants mediocre Supreme Court Justices

    I believe that the late Senator Roman Hruska (R-Nebraska), spoke for us all when, in support of the appointment of G. Harrold Carswell to the Supreme Court, he said (responding the charge the Carswell was a mediocrity):

    Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.

    Indeed we can’t.

  20. Rob Prather says:

    a court consisting entirely of people who had graduated from either Harvard, Yale, Princeton or Columbia for at least law school and

    I don’t think Princeton has a law school.

  21. Guarneri says:

    Is it just me or do the pictures of Ginsberg and Kennedy make you uneasy?

  22. HarvardLaw92 says:

    @Rob Prather:

    Correct. Princeton has not had a law school since 1852.

  23. CSK says:

    @Guarneri:

    They do look embalmed, don’t they?

  24. Guarneri says:

    One foot in the nursing home. But I don’t worry about all this Ivy League justice crap. Just think about John Paul Jones. What a career change after Zeppelin, eh?

  25. PogueMahone says:

    Scalia doesn’t even want clerks unless they went to an ivy league law school.

    Justice Antonin Scalia, Harvard Class of 1960, admitted [using top schools as a filter] in an address last year when he said his favorite court clerk was Jeff Sutton, whom he inherited from Justice Lewis Powell.

    “But I wouldn’t have hired Jeff Sutton for God’s sake! He went to Ohio State,” Scalia said.

    The audience laughed, but Scalia wasn’t being ironic. He said he believed the best schools admit the best and the brightest, and the best and brightest walk out of those schools as well.

    Nothing but class, huh Scalia? Of course, the right kind of class.

  26. Pinky says:

    @Guarneri: @HarvardLaw92:

    Someone’s got to say it – a few of these justices look like they might have graduated from Princeton.

  27. charles austin says:

    Who knew there were that many conservatives in the Ivy League?

  28. C. Clavin says:

    @charles austin:
    They aren’t Conservative…they’re Republicans.

  29. Pinky says:

    @C. Clavin: They are neither…they are originalists.

  30. Hal_10000 says:

    This may be one of the only times I will ever agree with Lithwick. It’s not only the uniform background of the judges but the lack of trial experience (and the complete dearth of it on the defense side). Supreme Court decisions read like the minutes of a Harvard Faculty meeting where the judges debate the majesty and theory of the law without any concern for its practical impact. It’s what allows Elena Kagan to make the laughable assertion the our grand jury system is good enough to decide whether the government can seize all your assets to prevent you from hiring the lawyer of your choice.

    (And I don’t mean to pick on Kagan. All the judges say equally jaw-dropping things. Hers was just the most recent.)

  31. HarvardLaw92 says:

    What remains unsaid in Doug’s analysis is this: one of the primary factors, if not THE primary factor, with regard to being selected for a federal judgeship later in life has always been service as a clerk at both the circuit appellate and SCOTUS levels.

    This is a little misleading, as the pool of clerks at SCOTUS is almost totally comprised of people who have previously served as appellate clerks, so an analysis of which schools these clerks originate from is informative.

    8 law schools, all Tier I, – Chicago, Harvard, Yale, Columbia, Berkeley, Michigan, Stanford and Virginia – comprise 78% of the 1,839 SCOTUS clerks appointed in the modern era. Harvard accounts for 28%, and Yale accounts for 18%, with the other 6 making up the difference.

    The moral of that story is probably this: while there may be little functional difference in terms of intellectual ability with respect to a Harvard Law grad (median LSAT 173) in comparison to a grad from other Tier I’s like Stanford (median LSAT 171), Yale (median LSAT 173), etc., there is a noticeable gap between graduates from those schools and lower ranked schools like, say Mississippi (median LSAT 155) or Liberty (median LSAT 151).

  32. Grewgills says:

    @HarvardLaw92:
    Is the LSAT really all that indicative of intellectual ability, rather than the ability to take a multiple choice test using only the information given*? I have helped a few friends study for the LSAT and took practice tests along with them. I scored in the high 170s every time and my wife scored considerably lower. In a social sciences context she is a better writer than I am and can form better arguments than I can.

    * One of my mostly useless talents is the ability to do well on most any multiple choice test whether or not I understand the underlying material. That put me in the upper 1% on the SAT and upper 15% on GRE, though from experience in college and grad school I wouldn’t place myself there.

  33. Pharoah Narim says:

    Too bad they don’t factor social intelligence and aptitudes into entrance to these “elite” schools. Lots of egg heads can ace or near ace aptitude tests, Harvard turns away thousands. You need people that can focus intellectual ability into charismatic leadership that rallies people around common goals. Many of the people that come out of these schools and enter the political sphere frankly couldn’t lead a whore to a hotel room. Then you have a GW that would have a time figuring out a 10% tip for a whore….but yet led the country down the scrapper for 8 years.

  34. HarvardLaw92 says:

    @Pinky:

    They are “originalists” when it suits them to be, otherwise not so much …

    I’ll defer to Posner’s analysis of Scalia – He hits the nail directly on the head and I can’t add anything worthwhile to it.

  35. Pharoah Narim says:

    @Grewgills: Golly, my ability to take standardized test enabled me lots do lots of slacking in high school. I can eliminate 1 or 2 choices on almost every question I don’t know the answer to. C+ study effort usually translates into an A level test score mostly through test-taking ability alone.

  36. HarvardLaw92 says:

    @Grewgills:

    The LSAT is by no means the only determinant factor in admissions. I presented it as one objective comparison of the relative strength of each school’s applicant pool.

    Of course Harvard, with 50 or more applicants for every available seat, can be more selective and still populate a functioning school. To be fair, so can Duke, et al. Schools like Mississippi have the twin burdens of being located in states with relatively weak educational environments and having to accept varying percentages of their matriculating 1L’s from in-state applicants. It’s a self-fulfilling prophecy – a school with the luxury of having the best and brightest fighting one another to get in will, by and large, have a student population comprised of the best and the brightest.

    Liberty, of course, is going to attract a certain flavor of applicant, one driven by religious fervor and a desire to use the law in service to that motivator, but the nature of the school also limits the number of applicants who will seek admission in the first place.

    The whole Horatio Alger / anybody can succeed if they work hard enough thing is honestly in my opinion more or less a myth. Nature doesn’t imbue each person with equal intelligence, and society doesn’t imbue each person with equal nurturing, so there will unavoidably be some applicants with less ability than others, and those applicants will, by and large, achieve less than their more intellectually gifted peers regardless of how much harder they may work.

    I suppose the short version of that could be construed as “life isn’t fair”, and I assure you that I am not trying to be arrogant about it, but ignoring those facts in an attempt to make the world seem more fair that it is seems to me to be misguided.

  37. HarvardLaw92 says:

    @sam:

    Carswell, with a 58% reversal rate as a sitting judge, clearly was a legal mediocrity.

  38. Pharoah Narim says:

    @Pinky: An “originalist” is a self-identified fool. The culture, context, and national psyche that produces any document is gone after 120 years rendering those documents virtually obsolete. Those documents, no matter how noble, thereby become ineffectual in serving the new emerging culture, context, and psyche. What’s needed are visionary leaders that understand what ideas are still relevant, which are dead, and what new ideas are needed for the present needs of society. After that, practical courses of action and institutions can be designed around those ideas. For example, self-government is an idea around which the institution of democracy is designed around. Is self-government is still a pressing aspiration for our societies? Appears to be so the question is then how should democracy be organized to realize that objective. Is Democracy as we practice it past its shelf life or is it just due for some tweaking. Time will tell.

  39. charles austin says:

    @Pharoah Narim: Yes, of course. We just need the right dictator.

  40. HarvardLaw92 says:

    @CSK:

    While I may be a tad biased with regard to Ruth for personal reasons, I can say without qualification that mentally, she’s still as razor sharp – and a hell of a lot more so than most of us – as she has ever been. That may change, but at present she’s still more than capable of doing her job. She’s legendary at the court for setting a pace of work and a standard of quality that her clerks have a difficult time keeping up with. That having been said, though, they all adore her.

  41. Stonetools says:

    @HarvardLaw92:

    Thanks for the corrections, but my point was that he was more than just a lawyer- that he had other experiences and capabilities. Lots of other Supreme Court Justices-including some great ones- had careers and achievements outside the legal profession, and didn’t graduate from Ivy League schools.
    They need to find a way to widen the funnel again. Could William Brennan even be in the running for a Supreme Court slot today, given the reality that you have to be both a federal appellate judge AND an appellate judge Clerk from an Ivy League school to be even considered?

  42. Stonetools says:

    My corrections to the above post didn't take, because better examples would be Sandra Day O'Connor ( former legislator, non Ivy League) and John Paul Stevens ( non Ivy League, served in the military).
    Brennan did graduate from Harvard Law, but he wasn't a federal judge nor apellate judge law clerk, so he wouldn't have made it into the funnel either.

  43. sam says:

    @HarvardLaw92:

    Yeah. Hruska didn’t do Carswell any favors with that plea. As an aside, my second favorite Hruska story is this one. He was sitting on some senate committee investigating organized crime, and some mafiosi was singing testifying before the committee. Hruska asked the guy about the Mafia in Omaha. The guy turned to his lawyer and asked, “Where’s Omaha?”

  44. HarvardLaw92 says:

    @Stonetools:

    I think that we’re operating on the assumption that, because the current court is comprised of all Ivies, the court must therefore unavoidably continue to be comprised of all Ivies in the future. Historically the federal appellate courts have been comprised in the majority by Tier I graduates, not necessarily just Ivies. O’Connor graduated from Stanford, and Stevens graduated from Northwestern – both Tier I schools. Brennan graduated from Harvard.

    I’m truthfully not that fond of O’Connor, because once installed on the court she continued to function like the politician she was – seeking to gather consensus around rulings targeted at public opinion – rather than as a judge basing her reasoning on the tenets of the Constitution. Casey is a perfect example of this – O’Connor simply decided that some burdens on Roe were in line with public opinion, and she crafted a consensus justifying them. Her opinion in Lockyer alone is enough for me to wish she’d never been installed on the court.

    Stevens clerked for Rutledge and served as a judge on the 7th Circuit Court of Appeals.

    The somewhat interesting thing there is that both O’Connor and Brennan were appointed primarily for political reasons. O’Connor because Reagan wanted to pander to the women’s vote by nominating the first woman to the court and because he thought she’d be staunchly pro-life / anti-Roe.

    Brennan was installed on the court via a recess appointment shortly before the 1956 election largely because Eisenhower thought that nominating a Catholic Northern Democrat would help him swing some of that constituency to voting for him.

  45. Ben says:

    To me, the biggest problem with the SCOTUS isn’t where they went to freaking school, but how insanely one-sided their experience is regarding criminal work.

    A whopping 6 of the 9 were prosecutors at some level, and nary a one has ever done any significant defense work.

    That is downright terrifying, and explains why the 4th, 5th, and 6th Amendments have been getting vastly and steadily eroded over the last 25 years. They just don’t give much of a damn about the rights of the accused, and it’s no wonder when you look at their credentials.

  46. gVOR08 says:

    @HarvardLaw92: Silly me. I thought I’d take a couple minutes and read the link. Posner isn’t my usual line of territory, but I read a bit of him a few years ago in a search for good conservative writers. He kept reminding me of the recurring line in Catch 22, “Your prose is too prolix.” I’ll try to read the link tonight when I have time. If he does carryout, does it take him 500 words to order pizza?

  47. HarvardLaw92 says:

    @gVOR08:

    You’re dealing with people – myself included – who call a 50,000 word document a brief. Thorough analysis doesn’t often lend itself to being confined to a brief synopsis.

  48. al-Ameda says:

    From the article:
    All nine sitting justices attended either Yale or There is not a single justice “from the heartland,” as Clarence Thomas has complained.
    ———————

    Well, I for one, would not object if Justice Thomas resigned and afforded the president an opportunity to nominate someone from “the heartland,” wherever that is.

  49. Pinky says:

    @HarvardLaw92: I haven’t read the book or the cases that Posner refers to, so I can’t comment on them directly. I’ve read similar complaints against Scalia, though, and I haven’t been impressed. Posner complains about the opinion in US v Eichman not being sufficiently originalist – but that opinion was written by Brennan. He says that Scalia and Garner omit contrary evidence – but a book has a finite number of pages. He complains that they didn’t flesh out Blackstone enough, but then also complains when Scalia cites legislative history, which is entirely appropriate using Blackstone’s method. He seems (I can’t be sure) to toggle between Scalia’s ideas of good law and Scalia’s ideas of good jurisprudence.

  50. HarvardLaw92 says:

    @Pinky:

    I haven’t read the book or the cases that Posner refers to, so I can’t comment on them directly.

    You should, so that you can.

  51. HarvardLaw92 says:

    @al-Ameda:

    I won’t miss him either. While I vehemently disagree with Scalia’s viewpoint regarding the law, I maintain a deep degree of respect for his intellectual ability. While that has been tempered a bit of late due to him increasingly choosing to demonstrate his bitterness and snark, he’s still one of the more brilliant justices we’ve ever had on the court.

    For Thomas, however, I have little but contempt. Of all the justices who were appointed based on a political purpose, he’s at the top of the list of people who never, ever should have been seated on the court. The only way that he could improve it is by leaving it.

  52. sam says:

    @HarvardLaw92:

    You might find this eye-opening. I know I did: Corey Robin, Clarence Thomas’s Counterrevolution. To say it’s counterintuitive is an — what’s beyond ‘understatement’?

  53. Pinky says:

    @sam: Interesting piece. I think it falls within Thomas Sowell’s understanding of a constrained vision of human nature; that is to say, that humans are not infinitely malleable, so utopianism is doomed to fail. Good government checks the power of flawed leaders.

  54. sam says:

    It certainly causes one to rethink Justice Thomas’s jurisprudence. If Robin is right, Thomas may be the most radically skeptical Justice ever to sit on the Court: No institution in the United States, save maybe black colleges, is or can be free from the taint of white racism, and therefore there can be no institutional amelioration of the condition of the black citizens of the United States. All such efforts are vitiated, irreparably, by white racism.

  55. HarvardLaw92 says:

    @sam:

    Thomas’s Angry Black Man schtick isn’t worth reading about, no offense. It was threadbare 15 years ago, and it hasn’t improved with age.

  56. Pinky says:

    @HarvardLaw92: All angry black men, or just the one you don’t like?

  57. HarvardLaw92 says:

    @Pinky:

    Feel free to expand that to all. I have little use for blind rage, or people who allow it to consume their lives.

  58. grumpy realist says:

    @al-Ameda: I’d love to see Posner on the bench. Not only is he a brilliant writer, he also allows evidence to change his mind (something that rarely happens with Scalia.)

  59. al-Ameda says:

    @grumpy realist:

    @al-Ameda: I’d love to see Posner on the bench. Not only is he a brilliant writer, he also allows evidence to change his mind (something that rarely happens with Scalia.)

    I agree with you. Posner is always interesting, and he may be as close to an “independent” as we’re going to find these days.