Elitism in Supreme Court and Presidential Politics

By Shawn Simpson.

We now have an African-American president. And if current trends are any indication, it seems that this November we might have our first female president. Perhaps soon enough we’ll also have our first Latino, Native American, or gay president (if that hasn’t happened already that is – see the recent historical debate on Buchanan’s sexuality). In all, this is a welcome change in the face of our nation’s highest office and in the attitudes of the American electorate. But in the modern era, another change has yet to come. The last eight American presidents, besides being White, straight, and male, share another common feature: each of them is the beneficiary of a so-called “elite” education. You can even make the list eleven if you count Lyndon B. Johnson’s brief stint at Georgetown University Law Center. Since Truman – who didn’t even have a college degree – each president has attended at least one private educational institution. Obama attended Harvard Law School, Columbia University, and before that Occidental College, and he was a student at the most prestigious private high school in Hawaii. His opponent in the last election also shared a privileged past; Romney too was Harvard educated, attaining both a JD and MBA from the school and attending Stanford and BYU before that.

Take a look at the rest of our post WWII presidents, and the pattern becomes obvious. Both Bushs went to Yale and one of the most elite private high schools in the nation, Phillips Academy. Clinton went to Georgetown University and Yale Law School. Before them, Reagan attended the private Eureka College. Carter went to the highly selective United States Naval Academy. Gerald Ford is a Yale Law School alumnus. Nixon attended a private college and Duke’s law program. Yes, Lyndon Johnson didn’t graduate from Georgetown, and he attended the modest Southwest Texas State Teachers College (now Texas State University), but he also wasn’t elected to office the first time around. And his predecessor Kennedy? Well, we all know he went to Harvard. In fact, the two Democratic front-runners in this year’s election also hold elite credentials: Hillary having attended Yale and Wellesley College and Bernie Sanders having attended the University of Chicago.

Some questions are worth asking at this point. Why do we see this trend? Why are there so few public school presidents? Would Obama have gotten as far in politics if he had attended, say, the University of Hawaii and Berkeley’s law school? The answer to this last question is probably not. And the answer would likely be the same if we asked whether America today would consider electing a modern-day Lincoln, a man with no formal education at all, and yet Lincoln is often ranked as one of the nation’s greatest presidents.

Sadly, a similar trend holds true for our Supreme Court as well. Although we now have three female justices, one Black, one Hispanic, three Catholic, and two Jewish justices, each of the eight justices attended the law schools of Harvard, Columbia, or Yale – no public school justices, and no one outside even the Ivy League. In fact, the last Supreme Court justice without any private school credentials was Charles Evans Whittaker (University of Missouri, Kansas), nominated by President Dwight D. Eisenhower back in 1957.

This status quo has had a sort of trickle down effect. Most Supreme Court clerkships now go to students from the Harvard-Stanford-Yale bubble. From 2005-2015, Harvard, Stanford, Yale, and the University of Virginia contributed the most clerks to the Supreme Court. In 2011, twenty-six of the thirty-six Supreme Court clerks came from private law schools, eighteen were from Ivy League schools, and twelve were Harvard graduates. In 2012, Yale Law School had, by a large margin, the highest percentage of graduates in federal clerkships, followed by Stanford and Harvard.  Our newest Justice, Elena Kagan, has, in her entire time at the Court, had just one clerk from outside Harvard, Stanford, and Yale, a student from Berkeley.

There is even a bit of feedback going on here as getting a Supreme Court clerkship and an elite education are seen as almost necessary credentials for a future Supreme Court nomination. It seems that to get ahead you have to be ahead. Unfortunately, Clarence Thomas and the late Antonin Scalia appear to be the only justices openly vocal about this problem. Thomas is also one of the few justices who actively seeks out Supreme Court Clerk candidates from outside the Ivy-league circle – examples in recent years include students from the University of Virginia, Duke, and BYU.

Here’s another set of questions. What has gone on in American life to allow this situation? And what does allowing it to continue tell young Americans?

There are undoubtedly a number of reasons for the current state of things. The Halo effect, a cognitive bias in which an individual’s overall impression of a person, the company they work for, the brand of their degree, etc. influences their feelings and thoughts about that person’s character or qualities, is probably one of them. Consider how when you hear someone is from Australia you might be more likely to think of him or her as probably the sort of person who is adventurous or tough. But probably other things play a role too such as educational nepotism and the misguided belief that if you didn’t go to one of the “top” schools, then you just must not be good enough, and conversely that if you did go, then you must be.

Why do I say misguided? A few moments reflection should make this obvious. It’s well known that getting into an elite law program, for example, all but requires the right scores on the Law School Admissions Test (LSAT) and the right grades in undergraduate, and that coming from an elite undergraduate institution with letter writers from such a school brings an extra advantage. But getting the right score on the LSAT is easier if you have the money for expensive LSAT prep classes and the time to take those classes – things students who don’t come from well-off families and who have to work their way through college are often without. Noah Baron makes a similar argument in an article for the Huffington Post.

An analogous situation seems to hold for the elite undergraduate education that helps increase an applicant’s odds and helps the student garner the right connections. Getting into an elite undergraduate school is a lot easier if you went to an elite private high school and could afford SAT prep courses and tutors. These in turn are much easier to obtain if you come from a wealthy background. Again, to get ahead it appears you have to be ahead – or at least that, in the beginning, your parents need to be. Privilege perpetuates privilege.

A troubling aspect of this current fact of American politics is that it means that the people who are elected to represent the citizens are often those from the upper and upper-middle classes, people who are not actually representative of the majority of Americans at all, people who haven’t lived the experience of the average American economically and socially. No wonder so many politicians just don’t seem to get it. One might suggest that my very point about test scores inadvertently makes the case that the most qualified persons get into the Ivy Leagues. This, however, is to make an assumption regarding what counts as being the most qualified. I think most of us would agree that good scores, in part thanks to privilege, shouldn’t be the mark. We need to look elsewhere for what makes a student the right fit; we need to take more than scores, schools, and grades, into consideration; we need to look also at their backgrounds.

Getting back to a question I asked earlier, what does the broader situation say to young Americans, those who will inherit our political system and its problems? It appears to tell them that to have a real chance in politics, to make a difference in that way, the odds are they’ll need to go to one of these so-called “elite” institutions. For those in the working and lower-classes, this means taking out massive loans – something much riskier for someone of that economic background – to attend schools with a majority upper-class student body – a student body around which there’s a good chance these students will feel out of place, especially if their parents also didn’t graduate from a four-year institution. It also tells many of our young people that politics is still a game mostly for the rich and well-connected. It tells them that their opinion doesn’t really matter, and that perhaps they shouldn’t get involved – after all, who will listen to them if they don’t have the right credentials? In the real world, Mr. Smith usually doesn’t go to Washington.

Adding to the problem, the status quo is good for the “prestigious” private schools as it attracts more students to them and helps to cement their power and influence. For them, there is no incentive for change here. It is also bad for the public schools – the ones we’re supposed to care about – as the best and the brightest tend to be drawn away from them, and the parents who want the best for their children and who can afford it tend to, if they can, forgo keeping their children in the public school systems – a move that would likely decrease public school quality – and instead push their children into expensive private educational institutions that they perceive as better. Overall this isn’t good for the country, and especially for the average American.  There are many kinds of diversity. Educational diversity would likely strengthen the presidency and the nation’s highest court, rather than weaken it, as has racial, ethnic, gender and religious diversity. That said, what could we do about it?  Here are just a few suggestions.

First, we as a people can educate ourselves about this trend and its implications.  We can educate ourselves about things like the Halo effect, and about this hidden-in-plain-sight leg-up that many of our candidates – Black, white, gay or straight, may have. But more importantly, we can look at the candidates as a whole and look past how they look just on paper. After a talk at the American University Washington College of Law, Justice Antonin Scalia once admitted to a student how he chose his court clerks: “From the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest.” The assumption backing Scalia’s remark is that only the best and brightest get into those schools, and yet we know that’s not true. He’s also assuming that it’s not worth looking for those who are the best and brightest but still choose not to attend these elite schools, or that something like this could even have occurred. What would be better is if he and the people took the underlying attitude in his quote – about sow’s ears and silk purses – more seriously. It’s not the school that makes the student, it’s the student who makes the student. We shouldn’t look at the school; we should look at the individual. Lincoln didn’t need a college education. And we all know George W. Bush had one of the best.  Bright student into a state university, bright student out.  Privileged but no brighter into Yale, privileged but no brighter out.

 

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