The Case for a Public Law School Grad on the Court

Some months ago, prior to the announcement that Justice Breyer would retire from the Supreme Court, I wrote a blog post about diversity on the Court. Recognizing that race and gender understandably and correctly have been the two primary concerns of those seeking more diversity, I proposed that other diversity considerations should also matter: legal experience diversity; geographical diversity; educational diversity; and religious diversity. A reader of that post also suggested that a diverse Court might include a disabled person. Now that a nominee is poised to be confirmed and take Justice Breyer’s place on the Court, I want to focus on law school education and make this plea: next time, please nominate someone who is a public law school graduate.

Judge Ketanji Brown Jackson is immensely qualified to be a Supreme Court Justice. Notwithstanding political posturing and grandstanding that has gone on during her confirmation hearing, she should be and will be confirmed. Upon her confirmation, she will be only the third African-American to sit on the Court. And, of course, she will be the first African-American woman to be a justice.

Much also has been said concerning the diversity of legal experience Judge Jackson will bring to the Court. She served as a federal public defender for some period of time, and her appointment brings the much-needed perspective of a criminal defense attorney.

In one area, however, the nomination of another Harvard Law School graduate continues a decades-long trend that has had few exceptions: nomination of an Ivy League law school graduate. More specifically, it is consistent with the recent history of nominating a graduate of either of just two law schools, Harvard and Yale (except for one Columbia Law School graduate–Justice Ruth Bader Ginsburg–it appears that even fellow Ivy League law schools like those at Penn and Cornell don’t make the cut).

The time has come for a graduate of a public law school to serve as a justice on the Court. After all, it’s been more than fifty years since a justice that went to a public law school has served on the Court (that justice was Hugo Black, a University of Alabama Law School graduate who left the Court in 1971!). 

Why does this matter? For starters, more diversity of any kind on the Court can bring greater perspective. And, on this particular issue, it also would help lessen the belief of many that the Court is full of elitists. Indeed, even the recent nominees who did not graduate from an Ivy League law school graduated from elite private law schools (Notre Dame and Stanford being the most recently non-Ivy schools represented on the Court).

Further, it may be true that a diploma from an Ivy League law school is needed (or at least usually expected) to teach at the top law schools. But being on the Supreme Court is not the same as teaching at a law school. While serving on the Court may be considered something of an academic pursuit, it makes sense that experience and perspective are equally as important as good grades at an elite law school.

There are outstanding lawyers and judges who are graduates of public law schools. Many of them would make excellent justices. That some of these fantastic jurists may have been unable for various reasons to attend an Ivy League law school despite the academic record to do so should not be an barrier to their nomination to the Supreme Court. And if a top-notch academic record is important (aren’t the torts classes at Harvard and Yale teaching the same thing as at other law schools?), there are highly-ranked law schools at public institutions like the University of Virginia (ranked eighth overall by U.S. News & World Report), UC-Berkeley (ranked ninth), the University of Michigan (ranked tenth), and UCLA (ranked fourteenth).

The Court will soon have a new member, one who is an outstanding choice. President Biden’s short list, prior to the nomination, included several other outstanding choices including a graduate of a public law school. That a public law school graduate was considered is a start, but here’s to hoping that the next nominee comes from somewhere other than an Ivy League or elite private school background. That will be a step toward even more diversity and help the Court shed any image it has as an elitist institution.