This past October marked one year since the swearing in of Justice Brett Kavanaugh as an associate justice to the United States Supreme Court. On October 7, 2018, after a historic 50-48 Senate vote in favor of the appointment, Kavanugh was confirmed to the highest court in the land. This moment was historic on many accounts, but especially nodded to the increasingly educationally homogenous backgrounds of judges, justices, and other powerful figures in the legal realm.
Following the exit of Associate Justice Anthony Kennedy, an opportunity arose to break up the Harvard-Yale law school duopoly that has controlled the Court for decades. However, the nomination fell to Brett Kavanaugh, a Yale graduate, both at the undergraduate and law school levels.
This is no surprise: All six of the justices appointed in the 21st century have attended either Yale or Harvard Law Schools. Eight of the nine justices currently serving on the Supreme Court have received law degrees from Harvard or Yale Law School. Associate Justice Ruth Bader Ginsberg is a half-exception — she received her law degree from Columbia after transferring from HLS. In the entire history of the Supreme Court, 20 of the 102 justices have attended Harvard Law School, with another 11 hailing from Yale Law School.
To some, this lack of an educationally diverse Supreme Court is troubling, especially given that the Court hugely impacts Americans, most of whom do not share the elite educational experiences of the current justices. Others argue that the schooling of a Supreme Court justice is only a single part of a greater picture that includes life experiences, careers, and other aspects of a justice’s background.
Diversity Within the Law School
The Harvard-Yale Law School duopoly over the Supreme Court can be worrisome, especially as most of Harvard and Yale’s history has contributed to repression of religious, ethnic, and racial minorities, a history that also implicates associated publications like the Harvard Law Review.
The Harvard Law Review is an especially powerful publication — it is one of the most prestigious publications of its kind, and has been widely cited and circulated for decades. Its 92-person editorial staff consists of handpicked second- and third-year Harvard Law School students. Serving as an editor of the HLR opens many doors to career opportunities in law, and being elected its president is essentially a golden ticket in the legal realm.
Diversity, however, is a relatively new aspect of the Harvard Law Review. In 2013, the publication decided to expand affirmative action policies to include gender in selecting the staff of editors. In 2016, it saw its most diverse class ever, with record-high percentages of students of color and women. The following year, the HLR inducted its first female-majority class, with 24 female editors and 22 male editors. The first black president of the Harvard Law Review, former President Barack Obama, was named 29 years ago. The first black woman to serve as president of the Harvard Law Review was named only two years ago, in 2017.
The diversity of the publication staff is particularly important to acknowledge, as it has boasted numerous notable alumni in its 133-year history, four of whom currently sit on the Supreme Court. Justices Ginsburg, Breyer, Roberts, and Kagan all served as editors for the publication during their respective tenures at HLS. Ginsburg and Kagan are two of only four women to have ever served on the Supreme Court. Ginsburg was one of eight women at Harvard Law School during her time there, and was the first woman to ever serve as an editor on the Harvard Law Review and the Columbia Law Review.
The rising number of female and minority students serving on the HLR points to a positive trajectory in the court’s future: Nearly all recent Supreme Court nominees have hailed from Ivy League schools where publications like the HLR have kickstarted the career route to their nomination.
Ivy League Implications?
As the overseer of Congress, the body that keeps the executive and legislative branches of government in check, and the guarantor of citizens’ rights, the Supreme Court holds immense power, making monumental decisions that impact people’s everyday lives. The power of the Court heightens the importance of the Harvard-Yale Supreme Court takeover, in fact a relatively recent phenomenon. In the early 20th century, many justices appointed to the Supreme Court had not gone to elite institutions like Yale or Harvard; others had never even gone to law school.
Dan Glickman, a former congressman, elaborated on the adverse effects of the Court’s lack of educational diversity in a 2016 Bloomberg Government blog post, lamenting that justices hailing from Harvard and Yale, who lack the life experiences of most Americans, are making monumental decisions in the judicial sphere where these experiences are most relevant.
An ideal Supreme Court for the people should be filled with justices that represent Americans. This includes diversity of race, religion, gender, and socioeconomic background. But what is often overlooked in appointees is diversity in educational background and experience. This phenomenon is perfectly represented in Obama’s 2009 appointment of Associate Justice Sonia Sotomayor. Though Sotomayor’s appointment was groundbreaking from the perspective of ethnic diversity, it did little to change the Court’s diversity in terms of educational background and experience. Obama made history by appointing a Latin-American woman to the Supreme Court, but in doing so, he cemented the Harvard-Yale monopoly of the Supreme Court. Most Americans are not affiliated with elite institutions such as Harvard and Yale, and the elite educational backgrounds of the justices distance them from the citizens they make decisions about.
Arguments centered around the push for educational diversity cite that it creates a disparity between the American public and the American judiciary, positioning people with homogeneous experiences to make the most important decisions for this country. In an interview with the New York Times, Linda L. Addison, a partner at Fulbright & Jaworski, argued that educational diversity would be just as beneficial as racial, ethnic, gender, and religious diversity have been on the Supreme Court.
Jack Jaehyuk You, a second-year student at HLS, agreed with this argument in an interview with the HPR. “I don’t think the diversity within the school is enough to justify all of the justices having gone to these two schools only.” He mentioned that law school influences one’s understanding of the law and legal practice, and the Supreme Court justices’ shared training may be consequential. In essence, the lack of representation of other law schools on the Court can lead it to lack the diversity of thought that is so essential.
Richard Fallon, a long-time professor at Harvard Law School and an established legal scholar, holds a different perspective. “There are so many criteria that would be possible to use to assess the richness of people’s life experience and the diversity of their life experience, and certainly where they go to law school is one,” Fallon told the HPR in an interview. He maintains that the law school that a justice attended, however, is only a small part of their larger life experience, and other factors carry a heavier weight, especially justices’ lives after law school, most notably their legal and public service careers.
“I think it may be significant that all, or nearly all, of the current justices’ primary experiences in public service has come in being judges rather than elected politicians, and it may have given them a slightly different perspective on the nature of the constitution and legal problems,” Fallon explained.
Indeed, many of the current Supreme Court Justices spent their lives prior to appointment as judges at various levels. Most of these justices have held high, “elite” positions in law, namely in the U.S. Department of Justice, appellate courts, or established private practices rather than in positions working with law on the ground as, for example, a public defender. Although there are variations in “elite” law positions, a lot of these positions lack diversity and have limited interactions with Americans whom Supreme Court decisions affect most. The disconnect between Americans and these elite spheres of law amplify the consequences of justices coming from these backgrounds.
The Cycle of Elitism
Some of the arguments that criticize the Harvard-Yale duopoly on the Court center around the “elitism” that is said to be perpetuated at HLS and YLS. Spencer Livingstone is a third-year law student at Harvard who disagrees with this perception of elitism. In an interview with the HPR, when asked whether the law school perpetuates an “elitist” atmosphere, Livingstone mentioned that the environment is as it would be at any other law school: “I don’t think necessarily so. To the extent that there is that [elitist] viewpoint, I find it more among the students than what is fostered among the professors.” He clarified: “It’s only a few, vocal students.”
Livingstone also discussed the streamlining effect that HLS and YLS have on their law students, pushing graduates to pursue careers that would provide for a worrisome group of justices on the Supreme Court. They tend to funnel graduates towards particular career paths: “Yale is unbelievably oriented towards producing academics and Harvard is unbelievably oriented towards producing corporate lawyers.”
Indeed for most HLS students, corporate law is the default path, and Yale produces a great number of academics. In 2015, only 14.5 percent of HLS graduates pursued public interest or government jobs post-graduation, positions that are typically pathways to jobs as public defenders or in non-profits. However, upwards of 65 percent of HLS graduates entered private practice, most of them in corporate law.
As Livingstone explained, “One of the effects of that is that you have justices who just come through those pathways, and don’t have experiences with criminal defendants … [or] of what law is like on the ground.” This streamlining effect resonates with Fallon’s point that postgraduate experiences substantially shape justices’ perceptions of the issues that come to the Court.
Only one member of the current Supreme Court has had experiences “on the ground” like those that Livingstone described. Ginsburg served as general counsel at the ACLU for a number of years, where she established the Women’s Rights Project. It is clear that this experience has shaped her years on the Supreme Court. Others on the Court, however, have followed more conventional paths, serving as circuit-court judges or holding positions in the DOJ. It is also important to recognize that almost 60 percent of the United States’ 175 circuit-court judges once served as corporate law partners. Circuit Court judges, who serve at the level just below the Supreme Court, are most often considered as nominees to the Supreme Court.
Experience Matters
There are many aspects to take into consideration when a new justice is nominated to the Supreme Court. But while HLS and YLS have changed substantially over the years and are continually becoming more inclusive and diverse, it is imperative to recognize the career pipelines they promote in considering the consequences of their duopoly over the Supreme Court. Ultimately, the question of the lack of educational diversity is not just about how the institutions affected future justices while in law school, but also where they have taken, and how they have shaped, their students.
“All they know are books and abstract arguments … and thinking about things in terms of wealth rather than in terms of personal life,” Livingstone said, referring to the corporate-law pipeline that Harvard and Yale perpetuate. “And that will increasingly bear itself out in decisions from the Court that just seem divorced from the realities of life.”
Image Credit: Wikimedia Commons/Kjetil Ree