America Deserves Better Than Harvard and Yale

Thurgood Marshall was approved by the Senate Judiciary Committee (69-11) to become the first African-American to sit on the Supreme Court on Sept. 2, 1967. There are volumes upon volumes of literature on our first black Supreme Court Justice, but a connection between Marshall and today’s justices exists that needs to be better explored: that of their law schools.

Marshall attended Howard Law School and when he sat on the court (1967-91) the law schools of Stanford (Rehnquist, O’Connor), Yale (Fortas, Stewart, White), St. Paul College of Law in Minnesota (Burger), Northwestern (Stevens), NYU (Harlan), Harvard (Souter, Blackmun, Powell, Scalia, Kennedy, Brennan), Cal-Berkeley (Warren), Columbia (Douglas), and Alabama (Black) were all represented alongside Howard on the Supreme Court at one time or another.

These law schools represented almost every region of the United States and catered to all socio-economic classes and ethnic groups. With Marshall on the court, the third branch of government, the least democratic of all the branches, steered the republic through much of the Cold War and oversaw a dramatic cultural shift through the late 1960s and 1970s. The court did not avoid divisiveness, or accusations of unfairness. The court, with only one black man on it, and only one woman, also could not avoid charges of racial and gender bias, but it was generally seen as a bulwark against the prejudices of the day, and an exemplar of justice in an era of segregation.

Sure, there were uncomfortable debates in the Senate Judicial Committee and bitter rulings that divided the country. These were done in the midst of unpopular overseas wars and constant geopolitical challenges to liberal democracy abroad.

America today is facing many of the same challenges that Marshall and his fellow justices faced. Justices have been nominated by presidents from California (Reagan) to Arkansas (Clinton) to Texas (the Bushes) to Illinois (Obama) to the northeast (Trump), but this regional diversity in executives has not translated into regional diversity on the court. All eight of the current justices are from one of two law schools: Yale or Harvard, both of which are located in the northeast. Both of these schools are very good, of course, but the judiciary branch needs - as much as it is an aristocratic branch of government - to reflect a republic’s diversity just as much as the democratic branches of government.

Both Yale’s and Harvard’s law schools are liberal bastions of legal thought, which produce a certain conformity of opinion about how societies should be governed and the opposition (this conformity influences how the opposing side, the conservatives, shape their view of the law, too). And this way of thinking about the law is inevitably going to be influenced by the environment that shapes Harvard and Yale, two highly selective law schools in the midst of densely populated urban centers in the northeast.

If the Supreme Court’s liberal and conservative justices all come from one of two law schools, the prevailing mode of thinking about the law is going to be not only out of touch with most of the legal profession (and general populace), but also with the idea of a judicial branch dedicated to overseeing the laws of a vast, continent-spanning republic. Marshall’s supreme courts were elitist and aristocratic, which is what they were supposed to be, but what do you call a court that is so insular and so self-selecting that only two law schools are represented?

This is not a plea to lower standards in order to broaden the field, but there are a lot of good law schools in America, which is, after all, a republic governed by laws, not men. If the Kavanaugh debacle proves too much of a problem for federal politicians (Kavanaugh went to Yale’s law school), perhaps President Trump should think of looking elsewhere for a nominee. Here are three that would be good choices:

1. Eugene Volokh teaches at UCLA’s law school (where he also got his law degree) and is the son of immigrants from behind the Iron Curtain, which gives him fresh insights about authoritarian tendencies in the law and how to provide bulwarks against them. Here’s his webpage.

2. Michael McConnell teaches at Stanford’s law school (he got his law degree from the University of Chicago) and as an excellent grasp on complexity and the law. He was a judge on the Federal 10th Circuit, and clerked for the liberal SCOTUS justice William J. Brennan, Jr. He is most reliable for his views on freedom of religion, an often-ignored freedom in today’s discourse, but one that is shaping up to be a major battleground over the next few decades. Here’s his webpage.

3. Don Willett is currently a judge on the Federal Fifth Circuit, and actually made Trump’s shortlist recently. He got his law degree from Duke. Willett is, like Volokh and McConnell, well-respected on matters of religious freedom and property rights. These two areas, again, are going to be the focus in the eternal struggle between liberty and power over the next few decades in the United States, and Willett - who has some pretty deep connections to the GOP - has demonstrated time and again that he gives prefers the rule of law to party loyalty. Here’s a good profile of Willett.

Why three white guys in a post about America’s first black Supreme Court Justice? Because the law is colorblind, thanks in large part to Marshall’s long and eloquent tenure on the republic’s supreme court. As the United States slowly, but surely, moves away from racial segregation, it is important that we don’t replace one form of segregation with another. Americans deserve better than only Harvard and Yale.