Diversity on the SCOTUS
Over the last 50 years, we have seen significant strides in the diversity of Supreme Court (SCOTUS) justices. Although far from being an accurate reflection of the diversity of the United States, we have seen the first female, black, and Hispanic SCOTUS Justices be confirmed. However, there is one characteristic by which the SCOTUS is becoming increasingly less diverse: law school.
Of the 9 SCOTUS Justices currently serving, only Amy Coney Barret attended a law school other than Harvard or Yale by graduating from Notre Dame law school. She is part of an ever-increasing minority of justices on the SCOTUS that have not attended either Harvard, Yale, or Columbia law school. Of the 46 justices that have been confirmed in the last 100 years and held a law degree, 22 (47.8%) graduated from these three law schools. In the period between the confirmation of Justice O’Connor and Justice Coney Barrett, all 11 justices that were confirmed had attended these three law schools. Although benign at the surface, the law school diversity of justices plays a fundamental role in understanding the nomination process and the legitimacy of the judicial branch.
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What Goes Into A SCOTUS Nomination?:
Although the President has the sole authority to nominate a SCOTUS judge, the Senate must confirm the nomination by a simple majority. Although there are no constitutional criteria that SCOTUS nominees must fulfill, the President typically looks at three main qualifications when assessing potential nominees: professional, doctrinal, and representational.
Professional qualifications cover the legal experience of the nominees. SCOTUS judges have worked for private law firms, state governments, and/or federal branches, but experience on the federal circuit courts of appeals is increasingly becoming a qualification that is expected to be met. Doctrinal qualifications refer to whether or not the president’s political philosophy and view of public policy is shared by the nominee in question. This characteristic is assessed in order to attempt to predict how the nominee may rule in future cases and how they might affect the legacy of the President in the future. A nominee that may contradict the ideals of a President may be looked upon unfavorably, which can harm the judicial branch since the executive branch typically has the most power to enforce judicial decisions. Lastly, representational qualifications include the party affiliation, race, gender, hometown, and ethnicity of the nominee. Representational qualifications not only give the President and the Senate a glimpse into the nominee’s world view and thought process, but also allow parties to cater to certain demographics for political support and show that they are committed to accurately representing America’s diverse population and beliefs.
These qualifications are significant as they play a large role in the legitimacy of the SCOTUS. As Hamilton mentioned in Federalist 78, the SCOTUS has “no influence over either the sword or the purse,” meaning that they have no instruments to enforce their decisions. Without being considered legitimate by the rest of the federal government and the American people, the judicial branch cannot faithfully execute their duties to the Constitution, since they rely on the confidence of the rest of the country to accept their judgments. If the SCOTUS and its decisions are unpopular, its legitimacy is able to support itself. However, if labeled as incompetent or hypocritical, the court’s legitimacy falls, subsequently reducing the significance of the judicial branch, and leaving the government less stable and less efficient.
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What Does Law School Mean in the Nomination Process?:
Law School is typically considered a professional qualification for a SCOTUS nominee. Attending a prestigious law school has become a mark of whether or not a nominee is capable of working at the highest level within the legal profession and opens up the most prestigious legal opportunities. For example, Harvard, Yale, and Columbia law school students have accounted for 149 SCOTUS law clerks from 2013-2019, accounting for more than 60% of all SCOTUS law clerks during this period. Unsurprisingly, many Senators and Presidents have also attended these very same law schools and have an inherent bias towards alumni of these prestigious law schools and consider them to be a part of the same elite political circles. This is supported by George W. Bush, who in his presidential memoir stated that SCOTUS nominee Harriet Miers faced heavy opposition in the Senate mainly because of her lack of a prestigious law degree, which led to her nomination being withdrawn.
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Harriet Miers, Amy Coney Barrett, and the Future:
The example of White House Counsel Harriet Miers indicates just how significantly the President and the Senate weigh the prestige of a nominee’s law degree when assessing professional qualifications and the nominee’s impact on the court’s legitimacy. However, as public opinion of the SCOTUS continues to decrease, future Presidents and Senators must address the question of whether or not the elitist makeup of the SCOTUS is beneficial or harmful to its legitimacy.
The confirmation of Associate Justice Amy Coney Barrett may have acted as a litmus test for future nominations. Although her professional qualifications were viewed as underwhelming by some in the media, her Notre Dame law degree was heralded as a step towards educational diversity on the Supreme Court. Many argue that the identical education of SCOTUS judges has led to constrained judicial philosophy, leading to decisions that may not reflect the thoughts of the rest of the legal community. More diversity in the legal education of SCOTUS nominees may lead to more diverse legal thought and less politicization of the court and its justices, a problem that Chief Justice Roberts hopes to address.
This may also open the door for more diverse SCOTUS nominees in general, as prestigious universities have been criticized for having far too little diversity amongst their student populations. The benefits that we see from the increased diversity in the racial, religious, and regional makeup of the court in recent years may very well be bolstered by an increased diversity of legal education. If the President and Senate truly believe in the goal of diversifying the court, starting at legal education may be the next step.
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