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Monday, May 10, 2010

Harvard and Yale on the High Court

With the national media (and Tom Goldstein) reporting that the President will announce his nomination of Solicitor General Kagan to the SCOTUS in an hour, there is simply nothing else to post about this morning.  The N.Y. Times coverage notes something that may be of particular interest to readers of this blog: if Kagan is confirmed, the Court will be composed exclusively of graduates of Harvard and Yale law schools.  Is this a problem?

As a YLS graduate, I might be expected to feel that this is only appropriate.  (How did those Harvard folks get on the court, anyhow?)   Yet as a teacher at a non-Ivy law school, I do have some anti-elitist tendencies.  Personal affiliations and cheerleading aside, however, is it an institutional weakness, or simply the result of meritocracy?

On the one hand, it is not unusual for nations to have a couple of institutions that are pipelines to power (Sciences Po, Oxbridge).  And one could argue that the hard-driving, extremely bright people appointed to the Court in recent years simply would have matriculated at the most prestigious law schools, if for  no other reason than that they were competitive and ambitious.  The job of a Supreme Court justice is one of the few in Washington in which the actual appointee must do her own work, and it is work of a particular kind--analytical, abstract, and involving intensive research and writing.  Maybe these are skills best cultivated in a few elite settings, where future contenders joust with one another and mentors.

Even accepting that argument, however, why only Harvard and Yale?  What about Stanford, Columbia, Univ. of Chicago, Cornell, Cal?  And doesn't the U.S. pride itself on supposedly having a more open society, with broader educational choices and more paths to success?  What about breadth of experience and perspective, even if only geographic?  Aren't those important qualifications too?

Perhaps the Harvard-Yale block is simply a result of the law's old-fashioned credentialism.  As a member of my extended family delights in reminding me, there really are few metrics for measuring true excellence in the law.  So we use these imperfect heuristics like the U.S. News & World Reports rankings, or the judge for whom a nominee clerked.

Although the Harvard-Yale hegemony manifests a certain narrowness, I can't quite get worked up about it.  (Only a few years ago, O'Connor and Rehnquist, Stanford Law School classmates, served together on the Court.)  More troubling to me is the fact that the Justices do not have the type of broad legal experience that an advocate like Justice Marshall brought to the Court.  In today's legal environment, it is difficult to cultivate the elite experience and finely honed skills that are expected among the pool of SCOTUS picks, and to gain direct representation experience as well.  

Consider examples from my own field of study--criminal law.  Few justices have walked into a lock-up on a regular basis, counseled a juvenile regarding a plea, interviewed witnesses or survivors of violent crimes, or discussed the implications of a sentence with distraught family members.  These are experiences that cannot be fully conveyed in an amicus brief.  And we can expect to sometimes see the effects of that gap.

Posted by GiovannaShay on May 10, 2010 at 09:27 AM | Permalink


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I can't resist a little homerism here.

Warren Burger was a grad of William Mitchell.

Harry Blackmun, though a Harvard grad, taught at William Mitchell (as an adjunct) before joining the Court.

That's a couple of votes in Roe and Nixon, among other cases.

I think a little geographic and pedigree diversity is a very good thing.

Posted by: Mark Edwards | May 10, 2010 1:41:53 PM

Paul, with all respect to the extremely able and talented clerks (and I recall Justice O'Connor saying in an interview when she retired that working with them was one of the highlights of the job), a staff of four recent law school grads hardly matches the resources available to high-level executive branch appointees (or elected officials).

Posted by: Giovanna Shay | May 10, 2010 12:13:48 PM

"The job of a Supreme Court justice is one of the few in Washington in which the actual appointee must do her own work"

Really? Clerks?

Posted by: Paul Gowder | May 10, 2010 11:32:31 AM

Good point, Jeff. And assuming that it is significant that RBG finished at Columbia, it doesn't really broaden the group that much, does it? Still Ivy, still East Coast.

Posted by: Giovanna Shay | May 10, 2010 11:18:26 AM

You can also correctly say that all of them are alumni of HLS/YLS, which is something less than "graduated from" and even though it means the same thing as "attended," it sounds more institutional.

There are still two Stanford undergrads in Breyer and Kennedy, but it's true: back in the day it was something to see four Stanford grads (of the university as a whole) on the Court.

Posted by: Jeff Lipshaw | May 10, 2010 10:53:38 AM

And, thanks, anon. That is true about RBG. Thanks for the correction.

Posted by: Giovanna Shay | May 10, 2010 10:12:41 AM

Ah, Marc, I guess I was speaking of the current justices, and discounting the experiences of the former prosecutors among them. Perhaps a reflection of my own defense biases. But also I think a fair point. How many former public defenders are currently on the bench? Walking into a lock-up to interview the accused (as Justice Marshall certainly did) is different from the experience of the Asst. U.S. Attorney or D.A. Not better or worse--just a different perspective.

Posted by: Giovanna Shay | May 10, 2010 10:10:19 AM

RBG graduated from Columbia. The right stat is all justices *attended* HLS/YLS.

Posted by: anon | May 10, 2010 10:10:08 AM

Giovanna, thanks for the post. I am curious about your comment that few justices have walked into a lock up or interviewed witnesses or survivors of violent crimes.

There are (I think?) several justices that in all probability have done some of these things. Justices Alito and Sotomayor on the current court. Justice Marshall, Justice Jackson, and Justice Frankfurter in the past.

When these justices or other justices with these sorts of past experiences are confronted with criminal justice cases, what does the bare fact of having had the sorts of experiences that you describe add to their judgment? My own view is that these experiences may add very different sorts of perspectives from one justice to the next. Some perspectives may be welcome; others not. Whether the perspective is welcome or not will depend on one's other commitments -- not on the simple fact of having had a certain practice experience.

Posted by: Marc DeGirolami | May 10, 2010 10:04:49 AM

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