Supreme Monopoly: Kagan’s Nomination Confirms The Lack of Educational Diversity on The Court

Below is today’s column (one of two columns today on the Supreme Court) addressing the troubling exclusion of schools other than Harvard and Yale on the Supreme Court — a type of academic cartel that is damaging to both that institution and our educational and legal systems generally. Click here for the other column in USA Today. Time Magazine also ran a long story on the reliance on graduates from Harvard and Yale, here.

If confirmed as a Supreme Court justice, Elena Kagan will bring greater diversity to the court by adding a third woman. What she will not bring is educational diversity. Her confirmation will leave the court entirely composed of former law students at either Harvard or Yale.

The decision of President Obama to select a nominee from one of these two schools is particularly disappointing as a replacement for Justice John Paul Stevens — an iconic figure on the court who was also its only graduate from an alternative institution (Northwestern). Kagan will join fellow Harvard graduates Chief Justice John G. Roberts Jr. and Associate Justices Antonin Scalia, Stephen G. Breyer and Anthony M. Kennedy. This leaves three justices from Yale (Clarence Thomas, Samuel A. Alito Jr. and Sonia Sotomayor). Associate Justice Ruth Bader Ginsburg also attended Harvard but graduated from Columbia.

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Why should we care? When you virtually exclude all but two of the nation’s 160 law schools as sources for justices, it not only reduces the number of outstanding candidates but guarantees a certain insularity in training and influences on the court. This bias is not only elitist but decidedly anti-intellectual. Moreover, there is no objective basis for favoring these two schools. Annual rankings from law schools on publication or reputation or student scores show relatively small differences in the top law schools. The actual scores of the small pool of students in the top tier vary by only a few points. While Harvard and Yale are routinely ranked in the top spots, the faculties and student bodies are not viewed as manifestly superior to such competitors as Stanford, Chicago, Michigan or other top schools.

If Obama had looked more broadly at outstanding graduates from other schools, he might have found someone with more professional experience, a more extensive writing record or some actual experience in the judiciary. What Kagan had was a Harvard connection and one of the most powerful legal cartels behind her. When challenged on this obvious bias in favor of two schools, leaders usually insist that it is just coincidence. Ironically, the federal government has long rejected the claims of businesses that insist their failure to hire from certain groups, such as women or minorities, is unintentional.

The United States leads the world in legal education, but you would not know that from the roster of justices. Obama preferred Kagan, for example, over such potential choices as U.S. 7th Circuit Judge Diane Wood, who is generally viewed as one of the most brilliant minds on the federal bench and who has a lengthy record of both opinions and legal writing. She also graduated from the University of Texas. There are dozens of such jurists and lawyers who are leaders in their fields from different geographic and educational backgrounds.

Elitism on the court is open and raw. For those not familiar with it, consider Scalia’s recent remarks to a student at American University’s Law School. He said that she should not expect to be considered for a Supreme Court clerkship given the school she attended. Scalia explained: “By and large, I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest … and if they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?” Many in the audience were not happy, but at least Scalia was being honest about the raging elitism at the Supreme Court. It is, of course, ridiculous to suggest that the top student at American is not competitive with the top students from Harvard. However, this prejudice against non-elite schools is perpetuated by justices like Scalia who rarely look beyond the top five schools for clerks.

Nominations like Kagan’s are the result of a network of graduates who work consciously or unconsciously to see that their own are nominated. Notably, after Kagan’s nomination, powerful figures from her Harvard years came forward to vouch for her abilities. Their message was the same: Despite her lack of a record, she is known in our circle as a real winner. She is, in a phrase, one of us. Indeed, reporters breathlessly reported how Kagan and Scalia are good friends and how she knows many of the main players from Harvard, as if it is the judicial equivalent to having graduated from the Hogwarts School of Witchcraft and Wizardry.

The favoritism shown Harvard and Yale should be viewed not just as incestuous but as scandalous. It undermines educational institutions across the country by maintaining a clearly arbitrary and capricious basis for selection. It also runs against the grain of a nation based on meritocracy and opportunity.

If there is one place in the world that should be free of such baseless bias, it is the Supreme Court of the United States. But that would require looking a bit west and south from the banks of the Charles River.

Jonathan Turley is a professor of law at George Washington University, where he teaches a course on the Supreme Court.

31 thoughts on “Supreme Monopoly: Kagan’s Nomination Confirms The Lack of Educational Diversity on The Court”

  1. That should have read “…and the laser-like focus by a law school professor on the singular issue of which law schools are represented on the Supreme Court is fairly absurd.”

  2. Hello Bloise, sometimes I make a ridiculous statement simply to let the reader use their brain. I’m glad you recognized that last sentence as preposterous, but I was hoping you might take it a step further. For example, that sentence might lead you to realize that nominating a Supreme Court Justice is but one of the many duties performed by the President, and the laser-like focus by a law school professor on that singular issue is fairly absurd. It might also lead you to realize that the Supreme Court justices are nominated by a single person, not by committee, and maybe that is the fundamental problem. Finally, it might also lead you to realize that no matter who is President, or who makes the nomination, not everyone is going to be happy with the choice.

  3. Alan

    ” …. If you think you can do a better job, then why don’t you run for President.”


    Such sophomoric reasoning at the end negates any thoughtful consideration of the entire post.

  4. One of the credentials is a high SAT followed by a high LSAT.

  5. It is sad that it is only the same old same old names…everywhere you look. And the Goldman Sachs….just incestuous. Makes you wonder what the required credentials are…..



    “Viewpoint diversity will almost always cut against affirmative action hires, which will almost always make the faculty less representative of viewpoint diversity in America.”
    ~Prof. Peter Schuck

    I would still like to see the diversity…

  7. I’m sure it’s always the best candidate that gets the job.

    No conspiracy here, just elite hiring practices. They simply ask that you have a pedigree from Harvard or Yale. Alternatively, one may serve time in the cabal known as Goldman Sachs. Graduating from Harvard or Yale, AND serving time in Goldman assures one of the grandest existences in good ole U.S.A! Fancy houses, private jets and absolutely no accountability.

    These are tips from my new book, “Getting ahead in contemporary America.” 😉

  8. Were I POTUS, I’d be tempted to nominate someone who graduated from U of DC or another 4th tier law school, just to make people’s heads explode. If you graduate top of your class and pass the bar 1st time out, then excel in the public and/or private sector, 25 years later when you get nominated for something it shouldn’t matter where you got your degree. Truth is, there’s no 100% reliable indicator of merit and competence, particularly when one is hiring/picking for a specific position the candidates have never performed before.

  9. well, then I can appreciate my GF’s grumpiness..hahahahaha!

  10. Woosty Yale is considered to be the most leftist law school.

  11. Swarthmore mom,

    Yes, no doubt atall. I am not anti-Ivy League, that was not my point. It’s the lack of diversity that I find disturbing. I think the very small circle of law schools does the country a disservice. [and it is SCOTUS so it is the Law school that is the issue here…].

    My GF was a Yalie lawyer…and he did work his way up and through. But to have reps from ONLY those 2 schools cuts off a huge amount of exposure to the rest of the Country. It just doesn’t surprise me that everything has moved so drastically to the right from both parties when we pick from such a small pool to populate that bench.

  12. In addition to Harvard and Yale, the following schools are also currently represented on the Supreme Court:

    Columbia – Ginsburg, JD & Professor
    Cornell – Ginsburg, BA
    Georgetown – Scalia, BA; Roberts, Professor
    Holy Cross – Thomas, BA
    London School of Economics – Kennedy
    McGeorge – Kennedy, Professor
    Northwestern – Stevens, JD & Lecturer
    Oxford – Breyer
    Princeton – Alito, BA; Sotomayor, BA
    Rutgers – Ginsburg, Professor
    Seaton Hall – Alito, Professor
    Stanford – Kennedy, BA; Breyer, BA
    U. of Chicago – Stevens, BA & Lecturer; Scalia, Professor
    U. of the Pacific – Kennedy, Professor
    U. of Virginia – Scalia, Professor

    Kagan represents Harvard (JD, Professor and Dean) as well as Princeton (BA), Oxford, and Univ. of Chicago (Professor)

  13. Bush hired lawyers out of Regent Law School although not for the Supreme Court.

  14. Woosty Some of these people came from nothing and worked their way into an ivy league school. Clinton was blessed with an exceptional mind. Sotomayor came from near poverty and at the top of her class at Princeton and was admitted to Harvard Law. Not all these people had legacies like Bush. As a matter of fact none of them did. Diane Wood was interviewed but maybe UT Law School was not good enough. Obama attained the Harvard Law degree and maybe he prefers that. He seems to prefer it in other jobs. Harvard and Goldman are are revered by Obama and Kagan has ties to both. Most of the new Supreme Court people came from the middle class and worked their way out. Is that not a good thing?

  15. “From the supporters of Elena Kagan’s nomination to the Supreme Court, we have learned that as Harvard Law School’s dean she provided free bagels and coffee to students, improved the gymnasium and added a multipurpose ice rink. Her detractors have reported on liberal columns she wrote — as a college student in the Daily Princetonian. Profiles have informed us that during Kagan’s Supreme Court clerkship, Justice Thurgood Marshall dubbed her “Shorty.”

    The chattering class is focused on such trivia because there is not much else to say. The single most prominent thing about Kagan is her extraordinary ability, while holding high-profile jobs in the legal profession, to say nothing about the major issues of the day.”

  16. I don’t know if there was intention but now that the edu-cat is out of the bag it deserves attention. Can you say diversity????

    I am appalled that there are only 2 universities represented on the supreme court. From this entire country…only 2!?!

    from wikipedia~
    ‘Columnist Russell Baker opined that “Voters inclined to loathe and fear elite Ivy League schools rarely make fine distinctions between Yale and Harvard. All they know is that both are full of rich, fancy, stuck-up and possibly dangerous intellectuals who never sit down to supper in their undershirt no matter how hot the weather gets.”[56] Still, the last four presidents have all attended Ivy League schools for at least part of their education—George H.W. Bush (Yale undergrad), Bill Clinton (Yale Law School), George W. Bush (Yale undergrad, Harvard Business School), and Barack Obama (Columbia undergrad, Harvard Law School).’

    It does seem to be a rather exclusive…and most dangerously, insulateded, club. No wonder there is no longer a middle class.

    Not cool….

  17. AY,

    Perhaps Alan learned to be psychic. He is reading the President’s mind apparently. But you have to admire his use of the words “perhaps” and “probably”.

  18. Do you learn two words in the Turley class? Elitist Snobs?

  19. You assert, without any evidence, that the President excluded all potential candidates who were not graduates of Harvard or Yale. That is on its face ridiculous. The President no doubt considered candidates who graduated from many different schools, and perhaps even candidates who do not hold a law degree. Furthermore, the school from which the candidate graduated was probably not even a factor in the selection. The President no doubt focused more on the candiates’ experiences since graduation, as well as their philosophy, values and temperament. After weighing all of these factors, in which the candidate’s law school received little or no weight, the President chose who he felt was the best candidate. If you think you can do a better job, then why don’t you run for President.

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