Or does it reflect a more benign aspect of today’s elite higher education, namely the wide range of students accepted? Above all, is it important for the functioning of federal justice?
Seen in the historical context, the presence of so many judges from just two law schools is striking. Consider the great judges appointed by Franklin Roosevelt.
Judge Hugo Black completed a two-year program at the University of Alabama School of Law, where 40 students were taught by a grand total of two professors. Justice Robert Jackson spent a single year at Albany Law School and became a member of the bar while apprenticed at a law firm.
Judge Felix Frankfurter came to Harvard Law School as an immigrant (the last immigrant to serve on the court) who started out at City College of New York. Judge William O. Douglas went to Columbia Law School after attending Whitman College in Washington state, paying for his cross-country trip by feeding sheep on the train.
Today’s judges are mostly products of elite undergraduate colleges as well as Harvard and Yale law schools. (Disclosure: I got my law degree at Yale and teach law at Harvard.) Only Clarence Thomas, who went to Holy Cross as an undergraduate, and Amy Coney Barrett, who went to Rhodes College , were not Ivy Leaguers. Barrett went to Notre Dame Law School, where she finished first in her class – the only judge without a Harvard or Yale degree.
Yet the academic experiences of judges do not fully reflect their social origins. To illustrate this, take the stories of the two justices who are arguably the most conservative and liberal on the court.
Samuel Alito, author of Dobbs v. Mississippi, the decision that overturned Roe v. Wade, and Sonia Sotomayor share almost nothing in terms of jurisprudence or ideology. But they share identical resumes: Both graduated summa cum laude from Princeton University, then went on to Yale Law School, where they served on the legal journal.
Alito and Sotomayor were outstanding academic figures in a system designed, in part at least, to identify intellectual distinction – measured by being good at school. But neither came from anything close to elite circles.
Alito, who started at Princeton in 1968, was the son of an Italian-American immigrant from Calabria and grew up outside of Trenton, New Jersey. He had little in common with the boarding school-educated Protestants who were socially dominant in college at the time. As his Princeton classmate and law school roommate, Mark Dwyer, later memorably put it,
We Catholics were different — we were cultured Catholics, repressed, a bit shy, aware that we were in a non-Catholic world… At Princeton, we never had any intellectual limitations. But it was obvious that the preppies from Andover and Exeter had invited themselves there and were part of the traditional culture of the Ivies.
Sotomayor stood out even more from his academic peers. Her parents had moved from Puerto Rico to the Bronx, where she lived in public housing. Upon arriving at Princeton, she said she felt like “a visitor landing in a foreign country.”
Sotomayor started school in 1972, the year Alito graduated, just a few years after he began admitting women. She said she struggled academically during her freshman year. When she realized this, she began to shine and eventually won Princeton’s Pyne Award, given to the student “who has most clearly exhibited excellent scholarship, strength of character, and effective leadership.”
Alito and Sotomayor became members of the elite by virtue of their upbringing. Seen in this light, the two have a lot in common with Frankfurter and Douglas.
The same could be said of most current judges. Thomas grew up in poverty. Most of the others came from fairly ordinary middle-class backgrounds – including Chief Justice John Roberts and Justice Ketanji Brown Jackson, both of whom went to Harvard College and Harvard Law School.
None of the nine judges had parents who themselves attended elite colleges or graduate schools. Only Neil Gorsuch (whose mother was an administrator of the Environmental Protection Agency under Ronald Reagan) and Brett Kavanaugh (whose grandfather went to Yale) belonged to circles recognized as exclusive before going to university.
When you hear the word “elite” from American conservative politicians, it also means “liberal” (leaving aside the fact that many of those same politicians went to those schools themselves). It is true that the vast majority of professors and most students at Harvard and Yale Law lean to the left. Yet the six conservatives on the Supreme Court today were all clearly able to form and defend their own opinions, even when those beliefs were countercultural.
Indeed, the demonstration of conservative views through their elite legal formations has functioned as a marker of ideological commitment that Republican presidents find appealing when deciding who to appoint to court. Since the early 1990s, Republicans have wanted to avoid appointing justices like Anthony Kennedy, Sandra Day O’Connor and David Souter, all of whom turned out to be moderates despite conservative expectations that they would move the court to the right. The ability to stick to one’s beliefs in a majority liberal environment early on is probably a pretty good indicator that someone is unlikely to take a centrist turn later on.
As for professional experience, it is true that judges today come from a much more limited number of professions than before. None ran federal agencies, unlike Douglas, for example, who was chairman of the Securities and Exchange Commission. None served in a legislature, unlike O’Connor, who was the majority leader of the Arizona Senate. None was even a state attorney general, like O’Connor and Souter were. Most were lawyers in a combination of government service and private practice. Two, Kagan and Barrett, were law professors.
However, the narrowness of their careers is not a function of their elite formations. Many graduates from top colleges and law schools are involved in politics or activism or non-profit organizations or businesses. One of the reasons they are not considered for the Supreme Court is that these companies invite controversy; the confirmation process in recent years has favored candidates with more restrictive experiences.
The pool of possible candidates is further limited by the specialist knowledge required in the modern field. Being smart in school is not enough to be a good judge. But it may be necessary, because the current doctrine of the Supreme Court is very complex.
Judges write highly technical opinions, aided by paralegals who, for the most part, have also gone to elite schools. You could learn those skills outside of the Ivy League, like Barrett did. Yet, it is difficult to argue that judges can be chosen without any attention to the abilities that make students successful.
Probably the best argument against nominating so many judges and judges from Harvard and Yale is that equally smart and accomplished people who were also good at school should not be overlooked in the selection process. Yet this is not an argument against elite-trained judges per se.
It’s a reminder that academic excellence transcends social class — a lesson Harvard and Yale and other great institutions have learned is the key to staying on top.
Read more about the Supreme Court opinion from Bloomberg:
• The supreme references of Ketanji Brown Jackson: Noah Feldman
• Supreme Court “Originalists” Are Flying Under a False Flag: Noah Feldman
• American judges are more like politicians: Noah Feldman
This column does not necessarily reflect the opinion of the Editorial Board or of Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is the author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America”.
More stories like this are available at bloomberg.com/opinion