Amid all the chatter about the preferred identity of President Biden’s nominee to succeed the retiring Supreme Court Justice Stephen Breyer, two prominent members of Congress from South Carolina, House Majority Whip Jim Clyburn and Republican senator Lindsey Graham, raised a new issue this week, as the Associated Press reported:
Enough already with the Supreme Court justices with Harvard and Yale degrees. That’s the message from one of Congress’ top Democrats to President Joe Biden, and a prominent Republican senator agrees …
“We run the risk of creating an elite society,” said Clyburn, a graduate of South Carolina State University. “We’ve got to recognize that people come from all walks of life, and we ought not dismiss anyone because of that.”
Graham, a member of the Judiciary Committee, which will hold hearings for the eventual nominee, said Sunday on CBS’ “Face the Nation” that he’d like to see the court “have a little more balance, some common sense on it. Everybody doesn’t have to be from Harvard and Yale. It’s OK to go to a public university and get your law degree.”
Not coincidentally, Clyburn and Graham have both encouraged Biden to nominate South Carolina U.S. District Court Judge Michelle Childs (whose nomination by Biden to the U.S. Court of Appeals for the District of Columbia is already pending) to the Supreme Court. Childs is a graduate of the University of South Carolina School of Law, and she has an advanced legal-studies degree from Duke.
Eight of the nine current Supreme Court justices went to Harvard or Yale for their JD. When Notre Dame Law grad Amy Coney Barrett was nominated by Trump, it was a token of the power of her right-wing fan base that she overcame the 45th president’s well-known Ivy League snobbery.
But a little research shows that Harvard-Yale domination of the Supreme Court is a recent thing. In fact, John Roberts is the first of the 17 chief justices to have attended either Harvard or Yale. His predecessor, William Rehnquist, graduated from Stanford Law. Rehnquist’s predecessor as chief justice, Warren Burger, went to St. Paul College of Law (later renamed Mitchell Hamline School of Law) in Minnesota. Going back further, Earl Warren went to UC Berkeley; Fred Vinson went to Eastern Kentucky University Law. A couple of early-to-mid-20th-century chief justices (Harlan Stone and Charles Evans Hughes) graduated from Columbia Law. But former president William Howard Taft, who attended Yale as an undergrad, got his law degree from the University of Cincinnati.
My favorite Supreme Court background story involves Charles E. Whittaker, who served on the Court for five years after Eisenhower nominated him in 1957. Whittaker, a Kansas farm boy, dropped out of high school when his mother died, and some years later, talked his way into the Kansas City School of Law (now the University of Missouri-Kansas City School of Law) on condition that he work on getting his high-school diploma at the same time. He made it to the Supreme Court despite a background as remote from the Ivy League as you could find via stints as a U.S. District Court and U.S. Court of Appeals judge.
So no, it would not profane the Court to welcome someone who did not have the resources or luck or family connections or test-taking ability to study law in Cambridge or New Haven. There’s nothing wrong with those schools, of course, and the current betting favorite for Biden’s nod, D.C. Court of Appeals Judge Ketanji Brown Jackson, has two degrees from Harvard. But it’s not — or certainly hasn’t been — a prerequisite. There has even been some reverse snobbery at play in Supreme Court nominations: When some politician called Nixon nominee G. Harrold Carswell, a graduate of Mercer University Law School, “mediocre,” Nebraska Republican senator Roman Hruski responded, “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they? We can’t have all Brandeises and Frankfurters and Cardozos.” Carswell was rejected by the Senate for past expressions of racism, not the quality of his law school or even his questionable intellectual qualities. But all in all, a little leavening from non-Ivy quarters of the legal world wouldn’t do the Court any harm.