The Soul of Politics

Inside the Cloistered, Elite Supreme Court

Benjamin H. Barton

• Publisher: Encounter Books
• Year: 2021
• ISBN:
  9781641772051
• Topic: Diritto
• Subtopic: Tribunali

Ivy League Justice starts by establishing just how different today's Justices are from their predecessors. The book combines two massive empirical studies of every Justices' background from John Jay to Amy Coney Barrett with short, readable bios of past greats to demonstrate that today's Justices arrive on the Court with much narrower experiences than they once did. The modern Supreme Court specializes in cloistered and elite lives. Today's Justices have spent more time in elite academic settings—both as students and faculty—than any previous Courts. Every Justice but Barrett attended either Harvard or Yale Law School, and four of the Justices were tenured professors at prestigious law schools. They also spent more time as Federal Appellate Court Judges than any previous Courts. These two jobs—tenured law professor and appellate judge—share two critical components: both jobs are basically lifetime appointments that involve little or no contact with the public at large.The current Supreme Court is packed with a very specific type of person: type-A overachievers who have triumphed in a long tournament measuring academic and technical legal excellence. This Court desperately lacks individuals who reflect a different type of "merit." This book examines the exceptional and varied lives of past greats, from John Marshall to Thurgood Marshall, and asks how many, if any, of these giants would be nominated today. The book argues against our current bookish and narrow meritocracy. Healthier societies offer multiple different routes to success and onto bodies like our Supreme Court.

CHAPTER ONE

INTRODUCTION

The Rise of Our Cloistered Elite Court

Those who followed the Supreme Court confirmation processes of Merrick Garland and Brett Kavanaugh likely concluded that the country has never been more divided on what makes a good Supreme Court Justice. Kavanaugh’s hearings and processes were among the most divisive and brutal in the history of the Court. Kavanaugh at least had a hearing. Obama nominee Merrick Garland was announced dead on arrival in the Senate, and he did not even get a chance to make his case.

The roil in the Senate is, of course, just a reflection of the political reality that the Supreme Court and the selection of Justices has become a preeminent political issue. As with many other trends, Donald Trump made this subtext the text in his first presidential campaign. Trump released a list of twenty-one potential nominees (almost all Federalist Society choices and rock-ribbed conservative originalists) ahead of the election in an effort to win over Republican voters who might have otherwise objected to other aspects of Trump’s campaign and lifestyle. Candidate Trump loved to trot out the specter of multiple Hillary Clinton nominees as a critical reason why Republicans, evangelicals, libertarians, and others should vote for him. He wasn’t exactly subtle—consider this quote, from a 2016 rally in Cedar Rapids: “If you really like Donald Trump, that’s great, but if you don’t you have to vote for me anyway. You know why? Supreme Court Judges. You have no choice, sorry, sorry, sorry.”¹

The tactic worked well in 2016. In the immediate aftermath of the release of the infamous Access Hollywood audiotape, Franklin Graham advised his followers to stick with Trump: “Hold your nose and go vote,” he said. “You have to decide which one of the two [presidential candidates] you would trust to appoint justices that are going to protect our religious freedom as Christians.”² 2016 exit polls showed that Trump voters were especially likely to have considered the Supreme Court a deciding factor in their vote.³

Yet despite deep political divisions, Americans have unwittingly come to a different sort of consensus on Supreme Court Justices. This consensus is reflected in the remarkably similar educational, professional, and geographic backgrounds of recent appointees. Here are the backgrounds of three recent nominees listed anonymously and in no particular order. See if you can tell who is who:

NOMINEE ONE grew up in an upper-middle-class family and was the child of two lawyers. He attended an exclusive suburban private high school and graduated with a distinguished record. He then attended Columbia University as an undergraduate. He went straight from Columbia to Harvard Law School where he graduated cum laude. Nominee One was awarded a prestigious Marshall Scholarship to study at Oxford and eventually received a doctorate in Philosophy from Oxford. Nominee One clerked for a distinguished judge on the D.C. Circuit and then went on to clerk on the Supreme Court. After the clerkship, Nominee One stayed in D.C. and worked as an associate and then a partner at a top D.C. law firm. Nominee One then served as the deputy attorney general and acting associate attorney general before being appointed to serve as a federal court of appeals judge himself. He served as a federal judge for eleven years before being nominated to join the Supreme Court.

NOMINEE TWO grew up in an upper-middle-class household. His father ran his own advertising agency and his mother was the director of volunteer services at a religious organization. He grew up in a nice suburb and graduated as valedictorian of a public high school. He went on to attend Harvard on a scholarship and graduated summa cum laude. He went straight on to Harvard Law School and graduated magna cum laude three years later. Nominee Two then clerked for a prestigious judge on the Second Circuit before gaining a Supreme Court clerkship the next year. Over the course of his legal career Nominee Two worked in the Department of Justice for four years, including a stretch as deputy associate attorney general, as an associate and partner in a prestigious D.C. law firm, and as an assistant U.S. attorney in Washington, D.C. Nominee Two was then appointed to the D.C. Circuit as a Judge. He served as a judge for nineteen years before his nomination to the Supreme Court.

NOMINEE THREE grew up upper-middle class, the child of two lawyers. He attended an exclusive suburban private high school, where he excelled in his classes. He attended Yale undergraduate and went straight on to Yale Law School. He then clerked for two different prestigious federal court of appeals judges and spent a year as a lawyer in the Solicitor General’s Office before gaining his own Supreme Court clerkship. Over the course of his legal career he worked in an independent counsel’s office, the White House Counsel’s Office, briefly in a large law firm, and as the White House Staff Secretary. He was then appointed to the D.C. Circuit as a Judge, where he served for twelve years before his nomination.

If you guessed Gorsuch (1), Garland (2), and Kavanaugh (3), then you know a lot of granular trivia about those three individuals, because the differences in their life experiences and resumes are so few. In fact, the radical similarity of these three men tells us volumes about the current model of Supreme Court Justice and just how much that model has changed over the years.

It was not always thus. This book is a study of the backgrounds of America’s Supreme Court Justices, starting with the first, John Jay, and continuing through Amy Coney Barrett. I studied and quantified the pre-Court life experiences of all 115 Supreme Court Justices. I use this study to answer a series of related empirical questions and then to draw some conclusions about the state of the Supreme Court and the country as a whole. I also tell a series of anecdotes about the lives of these Justices before they joined the Court to show what we’re missing on today’s Supreme Court.

What backgrounds predominate among modern Justices? Here Garland, Gorsuch, and Kavanaugh’s backgrounds are typical. It turns out that their commonalities reach to the entire Court.

To begin, let’s start with the most common elements. The last four nominees (Garland, Gorsuch, Kavanaugh, and Barrett) all grew up in the suburbs of major American cities in relatively prosperous, professional homes. This is of a piece with the other current Justices. Only John Roberts (Long Beach, Indiana), and Clarence Thomas (Savannah, Georgia) grew up outside a major metropolitan area. Five of the Justices went to high school inside the Acela corridor between D.C. and New York City (Alito, Kavanaugh, and Gorsuch join the New Yorkers Kagan and Sotomayor). The majority of today’s Justices also come from upper-middle-class families in which at least one of their parents were professionals, including five Justices who had a lawyer parent (Breyer, Kagan, Gorsuch, Kavanaugh, and Barrett).

Every Justice except for Clarence Thomas and Amy Coney Barrett attended an Ivy League institution or Stanford for his or her undergraduate degree. This means that each of these seven Justices was not just a decent student in high school; each was exceptional enough to gain admittance to the most competitive universities in the country. In 2018 Education Week published a roundup of the high school achievements of the current Justices—it reads as one might expect: valedictorians, class presidents, elite public or private schools, etc.⁴

Ironically, Justice Thomas may actually have achieved the most before college.⁵ Thomas was born in 1948, in Pin Point, Georgia, to sharecroppers. Pin Point is a tiny and exceptionally poor town outside of Savannah, Georgia, founded in 1896 by freed slaves on the grounds of a former plantation. Thomas’s home had no electricity, heat, or running water. He was raised in a family that spoke Gullah, an African Creole language of former slaves, as its first language. The Supreme Court, like other American institutions, has its share of rags-to-riches stories, but it would be hard to imagine a tougher and more impoverished early childhood than Thomas’s. His family scraped out a living as sharecroppers in a manner that had more in common with 1850 than 1950. Thomas’s father left when he was two. His home burned down when he was six, and when he was seven his mother sent him to live with his grandparents in Savannah.

Thomas’s grandparents enrolled him in Catholic schools. He attended the all-black St. Pius X for ninth and tenth grade. In the mid-1960s there were no desegregated schools in Savannah, public or private. Thomas decided he wanted to be a Catholic priest and knew that he’d have a better chance of graduating and attending seminary if he transferred to the all-white Saint John Vianney School. Thomas applied and was admitted as the first black student in an all-white Catholic school in Savannah, Georgia, in 1964. Thomas repeated tenth grade so he could study Latin (which was not offered at his previous school) and did well enough to graduate and continue on to Seminary. Like Sonia Sotomayor, whether you admire Justice Thomas as a jurist or not, his biography is a gripping story of triumph over hardship, especially in comparison to the easier paths of his colleagues on the Court.

But the achievements hardly ended in high school. Each of today’s Justices excelled in college as well. How do we know? Because almost every recent Justice then enrolled in either Harvard or Yale Law Schools. From the appointment of John Paul Stevens in 1975 (a Northwestern Law grad) until Amy Coney Barret in 2020, every Justice attended Yale, Harvard, or Stanford for law school. Then and now these schools were among the most selective institutions of higher education in the world, and each of these Justices did well enough as undergraduates to earn admission into those august institutions. Moreover, Thomas, Sotomayor, and Ginsburg all arrived as relative oddities and trailblazers, facing the added pressure of being visibly dissimilar to their mostly white, male classmates.

In fact, Justice Ginsburg’s responsibilities as a young, married mother help explain the one pre-Barrett anomaly among the recent Justices: she attended Harvard for the first two years, but actually graduated from Columbia Law School, mostly due to Harvard’s stupidity and rigidity. Ginsburg’s husband, Martin, was a year ahead of her at Harvard. During Martin’s third year—and Ruth’s second year—he contracted testicular cancer and suffered through two operations and radiation therapy. If you think radiation treatments and cancer surgery are hard today, they were worse in 1957. Much worse. Ruth spent her second year of law school nursing her husband back to good health, attending her own classes, helping Martin with his, and serving as the primary caregiver to their two-year-old daughter Jane. Remarkably, she finished the year with exceptional grades.

Martin survived and graduated in 1958 with a plum job at Weil, Gotshal, and Manges, one of the premier New York law firms that hired Jewish lawyers in the 1950s. Most “white shoe” New York firms remained restricted, so a job at Weil was great news. Neither cancer treatments nor Harvard Law School were free, so Martin’s new salary would be most welcome. But the good news came with a dilemma. Ruth had to decide whether to divide her family so she could finish up law school at Harvard or to complete her degree in New York where she and young Jane could live with Martin. She decided to take her third year at Columbia. When she asked Harvard Law if she could still have a Harvard diploma if she spent her third year at Columbia they, in their infinite wisdom, declined, costing them one more Justice on the Supreme Court. Harvard’s mistake was thus the only impediment to a wholly Yale- and Harvard-educated Supreme Court for the decade before Barrett was appointed.

The current Justices’ triumphs continued in law school, an especially impressive feat given how competitive and hierarchical the legal profession can be, especially at the elite level. These competitions exist partially because of the nature of America’s legal system. From law school forward, American lawyers are taught to understand and work within hierarchies. Lawyers and judges must discern which precedents are controlling, which are persuasive, and which are to be simply disregarded. They must also fit regulations, statutes, and rules of interpretation within this complex machinery, recognizing that federal, state, and even local laws, regulations, and court precedents predominate in different areas. The ability to slot each law, regulation, and governmental body into its proper place is a critical legal skill.

This keen awareness of hierarchy naturally bleeds over into the nature of the profession itself, and thus to competition. In law school the competitions can grow quite granular. GPA is one obvious example (although Yale Law famously abolished number grades in the 1960s). Membership on law review and editorial positions are another. The competition hardly ends at graduation, as the battle over elite post–law school jobs like clerkships or fellowships can be at least as fierce.

The post-graduation careers of the Justices on the Roberts Court tell us a lot about where exceedingly ambitious and academically inclined lawyers with impeccable credentials choose to work. The most obvious first step is attaining a Supreme Court clerkship. Naturally, Harvard Law grads started the trend. In 1882 Justice Horace Gray hired the first Supreme Court clerk. Gray, one of the eight Supreme Court Justices to graduate from both Harvard College and Harvard Law School, selected Thomas Russell, a recent Harvard Law grad for the honor.⁶ Justice Gray apparently paid him out of his own pocket. Congress did not authorize funds for paying law clerks until 1886.

From 1882 forward a Supreme Court clerkship has been the most prestigious job a law school graduate can procure. A whopping two thirds of the Justices on the current Court served as Supreme Court clerks (Breyer, Roberts, Kagan, Gorsuch, Kavanaugh, and Barrett). The trend is actually accelerating: each of the last four Justices served as a Supreme Court clerk, as did Merrick Garland. Here, again, only sexism kept Justice Ginsburg from swelling the ranks of former Supreme Court clerks. Ginsburg finished tied for first in her class at Columbia and received a glowing recommendation from the Dean of Harvard, but Justice Frankfurter declined to hire her, thinking a female clerk was a bridge too far in 1960.⁷

After law school and prestigious clerkships, the Justices began their legal careers, again amongst only the very best of the best. Historically this would have meant a lucrative career in the private practice of law. If you add up all of the work experiences of all of the Justices from Jay to Barrett, you find that they spent the most time working as private lawyers, often as solo practitioners or in small firms. The current Justices, however, reflect a very different set of work experiences. In recent decades, Justices have tended to work as either a law professor, an elite government lawyer, or a corporate lawyer before eventually serving as a federal appellate judge, often on the hyper-specialized D.C. Circuit.

Before the death of Justice Scalia and the retirement of Justice Kennedy, time spent as a law professor on the Court was at an all-time high. With Barrett’s appointment it remains the most well represented recent career path on the Court. Scalia, Kennedy, Breyer, Ginsburg, Kagan, and Barrett all spent the bulk of their non-judicial careers in academia, and generally at the highest levels of academia. It is hard to overstate how hard these jobs are to procure. It is certainly very challenging to receive a Supreme Court clerkship. Yet typically thirty-six young lawyers reach that milestone every year. By contrast a top-ten law school will likely hire only one or two new tenure-track professors per year. Kagan, Breyer, Scalia, and Ginsburg all achieved this early in their careers. Each was remarkably decorated as an academic. Kagan eventually rose to become Dean of Harvard Law School, just the eleventh Dean in Harvard Law’s existence. Given that there have been 115 Supreme Court Justices, Kagan’s latest job is arguably less rarified than her former one. Breyer wrote two enormously influential books on risk and the American regulatory state. Scalia taught at Chicago, Virginia, and Stanford. Ginsburg personally changed the face of constitutional and gender discrimination law from Columbia. Barrett was the rare Notre Dame Law graduate to be hired back there to teach, a remarkable result reflecting her Scalia clerkship and her position among the most decorated Notre Dame Law grads in recent memory.

Other Justices chose a no-less-prestigious government-centric path. After a stretch as a district attorney and corporate counsel in Missouri, Justice Thomas headed to D.C. to work for Missouri Senator John C. Danforth and then in the Departm...