Andy Smarick*
Introduction
During congressional testimony in 1999, the late Justice David Souter explained that only those who graduated from one of the nation’s most elite law schools would be qualified for a precious Supreme Court clerkship. He considered it risky to hire from “outside the well-trodden paths.”[1] Earlier in the same hearing, he referred to Chief Justice Rehnquist’s well-known and different view: that the top performers at a wide array of law schools are “fungible.”[2] That is, the most elite schools might have more of the highest-ability students, but extraordinary talent can be found far and wide.
These competing visions of legal potential are reified by Justice Souter’s and Chief Justice Rehnquist’s actual histories of clerk hiring. Since 1980, no justice pulled from a narrower sliver of schools than Justice Souter; Chief Justice Rehnquist hired from one of the largest pools. This finding, however, is not limited to these two justices or even to justices on the United States Supreme Court. On the contrary, the legal profession appears split between the elitist Souterian vision and the egalitarian Rehnquistian vision. The consequence is two distinct prestigious legal circles. One has graduates of a vast array of undergraduate and law schools, including flagship public schools, regional public schools, small liberal arts schools, larger selective private schools, and more. The other is dominated by graduates of a strikingly slender set of private institutions, namely Ivy and “Ivy+” schools.[3]
At least two factors seem to have created and maintained these separate circles. The first is the education of “choosers,” the gatekeepers for elite professional roles. When Ivy+ graduates are in charge, they overwhelmingly hire Ivy+ graduates. They seem to hold the Souterian view that talent is concentrated in the types of schools they attended (Justice Souter graduated from Harvard College and Harvard Law School). When choosers are educated at a broader array of schools, the Rehnquistian vision predominates: individuals are hired from a broader array of schools.
The second factor is geography. In most of the nation, the top ranks of the legal profession are mostly filled by individuals from nearby public and private universities. Ivy+ graduates are few and far between. In only a few states, such as California, Connecticut, Massachusetts, and New York, are Ivy+ degrees prevalent.
The existence of two elite legal circles—and the reasons why they both exist—matters. First, as a practical matter, it affects the opportunities (or lack thereof) available to law students and early-career lawyers. Although the top graduates of non-Ivy+ schools can rise to professional prominence in the legal community across most of America, they are at a severe disadvantage in a few locations and when Ivy+ graduates are in charge of hiring decisions. For instance, Ivy+ justices are significantly less willing to hire clerks from non-Ivy+ schools. As such, talented graduates of most of America’s colleges and law schools appear to be systemically denied a fair shot. This also means that some of our legal institutions have a paucity of talented individuals from such schools.
Second, these two elite legal circles, because they have different educational profiles, may well differ in other meaningful, predictable ways. For instance, affluent, connected students have an advantage in the Ivy+ application-and-acceptance process.[4]Those students then spend years on campuses located in a sliver of America and with cultural sensibilities different than much of America. They then disproportionately build careers in a handful of East Coast, urban settings (e.g., Boston, New York, Washington, D.C.). This is not the experience of most legal leaders. America could, as a result, have two elite legal circles with significantly different instincts about religion and technocracy, knowledge of rural America and regional traditions, and views on politics, federalism, localism, civil society, and so on. At minimum, we should recognize the possibility, perhaps the likelihood, that these different legal circles think differently about law and policy. In what follows, I describe the differences between the “Souterian” and “Rehnquistian” views of talent, show how these differences manifest in a variety of important legal roles at the federal and state level, and describe the influence of several notable factors, including geography, ideology, and “feeder judges.”
Please click here to read to the full piece.
* Senior Fellow at the Manhattan Institute.
[1] Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations for 2000: Hearings Before the H. Comm. On Appropriations, 106th Cong. 13 (1999) (statement of David Souter, Associate Justice of the United States Supreme Court)
[2][2] Id. Regarding Chief Justice Rehnquist’s view on “fungible” talent, see generally Donald R. Philbin, Jr. & Pamela J. Minetto, Chief Justice Rehnquist’s First Bout With Classroom Instruction, 58 Okla. Bar J. 817 (1986).
[3] My studies follow the recent convention of adding four highly selective private schools (Chicago, Duke, MIT, and Stanford) to the eight Ivies to form an “Ivy+” category. When I refer to Ivy+ at the undergraduate level, it includes these 12 schools; when I refer to Ivy+ at the law-school level, it includes eight schools: Ivy+ schools Brown, Dartmouth, Princeton, and MIT do not have law schools.
[4] See Raj Chetty et al., Diversifying Society’s Leaders? The Determinants and Causal Effects of Admission to Highly Selective Private Colleges (Nat’l Bureau of Econ. Rsch., Working Paper No. 31492).