Late Supreme Court Justice Antonin Scalia and his would-be successor Neil Gorsuch don’t have a lot in common with Merrick Garland, President Barack Obama’s unsuccessful nominee for the same seat. But all three do share one thing: They went to Harvard Law School.
Indeed, if confirmed, Gorsuch would return the Court to its Scalia-era 6-3 majority of Harvard Law alums, and a 5-4 majority of Harvard Law graduates (Ruth Bader Ginsburg transferred from Harvard and graduated from Columbia Law). In case you were worried about the three-person minority that didn’t go to Harvard, fear not: All three went to Yale Law.
Harvard and Yale dominate the Supreme Court even more profoundly than they’ve dominated the presidency or Cabinet agencies. Only five people in Trump’s Cabinet (Ben Carson, Wilbur Ross, Steve Mnuchin, Elaine Chao, and Alexander Acosta) have Harvard or Yale degrees, out of 22 Cabinet and Cabinet-level posts total. President Obama had 13 members out of 22 in his last Cabinet.
But all four of the Supreme Court nominees that Obama and Trump put forward went to one of the two schools. Fully half of Obama and Trump’s picks went to Oxford too, for good measure (Gorsuch joins Elena Kagan and Stephen Breyer on the Court Oxonian block; he and Breyer are the Court’s two Marshall Scholars). Insofar as Gorsuch adds any educational diversity, it’s that he got a doctorate at Oxford and Breyer and Kagan got bachelor’s and master’s degrees respectively.
The last-appointed justice not to attend one of the two was Sandra Day O'Connor from Stanford; before that there was John Paul Stevens from Northwestern. You have to go back to Lewis Powell in 1972 to find a Supreme Court appointee who didn’t attend one of US News & World Report’s current top 15 institutions.
Both Trump and Obama also considered candidates who would’ve broken this track record. Gorsuch beat out Thomas Hardiman, another appeals court judge who went to (gasp!) Georgetown for law school. Garland beat Paul Watford, who went to UCLA Law. Each time, a Harvard or Yale candidate won out.
There’s an argument to be made that this isn’t a problem. Harvard and Yale are two of the three most selective law schools in the country; if you trust their admissions processes, they’re screening for the smartest and most talented would-be lawyers in the country, which is exactly who you want on the Court. (Though this raises the question of why Stanford, whose law school is more selective and prestigious than Harvard’s but less so than Yale’s, has produced so few nominees.)
But there’s also a real argument to be made that this is a dangerous kind of homogeneity. Harvard and Yale have very similar academic cultures, with very similar types of professors, very similar student bodies, and very similar intellectual milieus. It stands to reason that they’ll produce nominees who, whatever their disagreements, think and write and reason in very similar ways. They tend to take similar jobs after graduation, as law professors or political aides or at prestigious private practice firms. Sonia Sotomayor and Samuel Alito stand out as exceptions, as they’re both former prosecutors; there are no criminal defense lawyers on the Court.
And the cycle is self-perpetuating. The Harvard and Yale-educated justices select clerks from the clerk pool of mostly Harvard and Yale-educated “feeder” circuit court judges, who tend to overwhelmingly pick clerks who went to those schools too. Then those ex-clerks get prestigious partnerships at respected firms, or professorships at good law schools, or jobs in the Department of Justice and White House, which groom them in turn for appointment to the Court decades later.
It’s all a very insular world that takes on enormous power through its stranglehold over the judiciary. None of this is an attack on Neil Gorsuch specifically; by all accounts he’s a brilliant legal mind, whatever your take on his politics. But he’s symptomatic of a trend that’s concentrating more and more influence in the hands of a very particular, small set of people.
