Page last updated at 11:13 GMT, Thursday, 20 May 2010 12:13 UK

Should the whole Supreme Court come from two schools?

Graduates at Harvard law school
Are these future Supreme Court justices?

By Finlo Rohrer
BBC News, Washington DC

The nomination of Elena Kagan to replace the retiring John Paul Stevens on the US Supreme Court means, if she is confirmed, all of the justices will have been at either Harvard or Yale law schools. But why should two educational bodies provide all of the US's most senior judges?

It is really only a score of five-and-a-half for Harvard, some pundits would suggest.

If Ms Kagan is confirmed as a Supreme Court justice, there will be five from Harvard law school, three from Yale law school and one from Columbia law school.

The court has become a bastion of the elite - it's sophisticated, north-eastern, highly cultured
Prof Peter Hoffer

But Ruth Bader Ginsburg started out at Harvard law school before transferring to Columbia.

The inference could easily be drawn that the finest legal minds all come from just two of the US's law schools.

It has also been pointed out that four of the court will be New Yorkers and that the court will consist of six Catholics and three Jews - no protestants.

But should it aim to be representative on educational background, or anything else?

For much of its history, a geographical spread of justices was the top priority, notes Peter Hoffer, distinguished research professor at the University of Georgia, and co-author of The Supreme Court: An Essential History.

731 degrees conferred last year
402 male, 329 female
Ethnicity: Asian/Pacific Islander (10%), Black/non-Hispanic (9%), 42 Hispanic (6%), International students (26%), Native American (1%), White/Non-Hispanic (40%), Unknown/other (8%)

"Theoretically, the court is supposed to be divided among different parts of the country. Now we have gone past that - we are one nation, connected by the web and the media - that kind of geographical distinction is not so important any more."

After the need for geographical diversity of the court ebbed, other priorities emerged.

"As late as the 1960s you had a Catholic seat and a Jewish seat to ensure some kind of representation. It's rather ironic that now you have six Catholics and three Jews," says Prof Joel B Grossman, co-editor of The Oxford Companion to the Supreme Court of the United States.

With white, black, and Hispanic justices on the court and both men and women represented, the court might seem heterogeneous but in terms of educational background it's become extremely homogeneous.

Elena Kagan
Elena Kagan would be one of four New Yorkers on the court

"The court has become a bastion of the elite - it's sophisticated, north-eastern, highly cultured," says Prof Hoffer.

The retiring Justice John Paul Stevens finished his education at Northwestern law school in Chicago, a body with an excellent reputation. But new graduates of that school, nourishing hopes of rising to the pinnacle of their profession, might have cause to be pessimistic.

"It must not be very encouraging for the vast majority of law students who are in school in the middle part of the country where there are some very good law schools, but they are not Harvard and Yale," says Tony Mauro, Supreme Court correspondent, at the American Law Magazine. "It is time to have a bit more diversity."

It's not just the Supreme Court, of course. The prospects of Harvard law school graduates are high anywhere within the profession.

"There is nothing quite like having Harvard Law school on your resume," says Mauro. "It just has a certain cachet that is hard to beat."

Anyone defending the status quo might point out that Harvard and Yale do produce a stream of brilliant graduates, but there are of course brilliant graduates elsewhere too.

John Roberts: Harvard (undergraduate), Harvard (law school)
Antonin Scalia: Georgetown, Harvard
Anthony Kennedy: Stanford, Harvard
Clarence Thomas: Holy Cross, Yale
Ruth Bader Ginsburg: Cornell, Columbia (started Harvard)
Stephen Breyer: Stanford, Harvard
Samuel Alito: Princeton, Yale
Sonia Sotomayor: Princeton, Yale
John Paul Stevens: Chicago, Northwestern
Nominee Elena Kagan: Princeton,

"It is unfortunate Obama couldn't find somebody a little different," says Prof Grossman.

But he jokes that no-one would want to go as far as 1960s and 70s Nebraska Senator Roman Hruska, who spoke up for the need for average candidates for the Supreme Court, after the nomination of Harrold Carswell.

"Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?" asked Hruska, to much derision.

Most would now agree this is taking equal opportunities too far. And on a small body like the Supreme Court, it will always be tough to keep everyone happy.

"There is only a limited number of ways you can divide up nine," says Prof Grossman.

There are even allegations that the choice of clerks to the Supreme Court, an avenue to valuable experience for young graduates, is weighted towards certain schools.

"There was a time when the law clerks all came from Harvard, not even Yale," says Prof Grossman. Sandra Day O'Connor and Thurgood Marshall helped change that, and Justice Clarence Thomas is known for picking clerks from less predictable backgrounds.

"It turned out there are a lot of smart people they don't all go to Harvard law school," says Prof Grossman.

"[But even] if you look at the clerks today a majority come from Harvard, Yale, Stanford, Columbia and Chicago."

Thurgood Marshall and LBJ
There has been a long battle to make the court more diverse

You can read too much into the number of prominent people that come from certain key schools, says Prof John Manning, from Harvard law school.

"There are very many great law schools in this country. This is a moment in history where there are just an unusually high number of people who attended three law schools - Harvard, Yale and Columbia. I don't think it will always be this way."

But he suggests people often get the wrong idea about the social backgrounds of students.

"We have a very generous programme of financial aid. People think of Harvard and Yale as being these elite homogenous places but we really have a large and diverse class coming from many different backgrounds and places.

"It isn't like we are taking a tiny slice of Boston high society."

A selection of your comments:

Having had a close friend who clerked for Justice Souter, I have seen that process at near range. In some ways it is a resurgence of the good ol' boys network. Justices depend on certain judges to recommend clerks and Judges depend on certain professors (who are sometimes their own former clerks) at certain schools to recommend those clerks. This leaves a small body of people being considered who are intimately connected, and who mostly went to the same schools. The schools themselves start those connections within the law reviews leaving the top echelons of the law largely dependent on who you knew when you were 22 or 23 years old and leaving a lot of real talent and genuine perspective on the sidelines.
Susan, Uxbridge, MA, USA

Geographic diversity is still important in this country. I was a law clerk in one of the courts immediately below the US Supreme Court. My co-clerks went to Harvard and Yale as did many of the other clerks to other jugdes on that court. There were, however, several clerks from other top law schools. I went to a highly-ranked school in the Midwest. While Harvard and Yale produce brilliant students, the top students at other top-ten American law schools are able to hold their own against Harvard and Yale students. I think that it is a bit of accident that the Surpreme Court will be all Harvard and Yale. A more appropriate balance would be five or so with the other four seats being graduates of other top schools. I'm sure the Court will eventually revert to ratios of that sort.
Justin, San Francisco, CA, USA

I have said it before and I will continue to shout it from the mountaintops: most of these schools at this point are just coasting on reputation alone. I have known plenty of Ivy Leaguers who I wouldn't trust to balance my checkbook, much less determine the constitutionality of law. We have reverted back to a society where merit and ability are not appreciated. And we are lesser for it.
Jeremy, Albany, NY, USA

If you look at the numbers of applicants to Harvard and Yale Law schools, you will find that by and large, because it is such a ridiculously competitive process, it becomes somewhat arbitrary who actually gets in. This competition comes from the name recognition of these schools, not necessarily how good they are compared to other top law schools. There are plenty of people who go to Northeastern Law who are just as qualified as those that go to Harvard. The difference in the quality of education between these two and other tier one schools is small enough that the only real explanation for the educational homogeneity in the Supreme Court is name recognition.
Karl, Boston, MA, USA

This is little different from the situation in the UK where most political leaders come from Oxford University, regardless of whether they are Labor, Conservative or Liberal parties. There is evidently a pattern here among people who want to rule and direct others.
John Pike, Davis, CA, USA

The Supreme Court represents the pinnacle of our justice system, it stands to reason that the most qualified justices come from the pinnacle of American law schools. However, I do agree that these 9 justices represent the Constitution that binds 300 million people. I would like to see other justices from around the country, and it is the job of Congress to judge if they are qualified or not. Right now prospective judges from non-Harvard/Yale/Ivy don't event get the time of day, regardless of party.
J. Lee, Philadelphia, PA, USA

I believe there are natural geographic and educational biases. The culture of the South is very different than the West which is different from the Southwest and so on. If she is confirmed not one of these judges would be able to empathize with defendants or attorneys from the majority of the country.
Rudy, Atlanta

For once the conservatives have it right. The elite is Harvard and Yale. Their networking and fraternal connections are used like a Mafia to insert their people on the Supreme Court. Should nominees for these schools be denied confirmation for a while - YES. Time to broaden the diversity of the Court with folks from Montana, for example. Otherwise the Court continues to fritter away what little legitimacy it has after Bush v. Gore and the other decisions making it by fiat the penultimate legislative branch, unelected and unaccountable.
Greg, Media PA

Yale and Harvard have produced some of the USA's greatest legal minds, so it should be no surprise that they are chosen for the higher courts. In comparison Harvard and Yale have produced some of this country's worst presidents. Supreme court-yes, White House -NO.
Mark, Santa Ana, Ca,USA

Who nominates supreme court justices? The President. 5 of the last 7 American Presidents attended either Harvard or Yale. Jimmy Carter, a southern boy who didn't need no yankee education, and Ronald Reagan, a retired movie star, are the only two of the last 7 presidents not to have gone to Harvard or Yale.
Mark, Columbus, OH

Not one atheist among them, what a sad state of affairs.
Martin, Helsingborg, Sweden

Do they at least like beer? Everything else will fall into place...
JP Knowland, County Clare, Ireland

Court seats should be decided on skill & credentials, and the best minds usually come from the best schools. However, back when Sotomayor was under review, I remember hearing a lot of noise from the Left about the need for "diversity" on the Court. After Kagan's appointment (despite zero judicial credentials), the Court would be made up of six Catholics and three Jews in a majority-Protestant country. Where are the diversity advocates now?
Mike, Chicago, IL, USA

Should most of the American Nobel Prize winners come from Harvard/Yale/MIT/Cornell/Columbia? This is not about elitism. This is about who are the best legal minds in the nation. I don't think I would want my local judge who runs our traffic court who didn't go to law school to be a supreme court judge.
jacob, Austin, TX

The Supreme Court needs to consist of those that actually have the skills and unbiased nature to judge fairly, not the candidates who are friends with politicians or those that will bring in more support from different areas of voters.
Kristin, Buffalo, NY

I'm not really concerned with where they went to school. I am concerned that they are qualified for the lifetime job. If Pres. Obama thinks Elena Kagan is the most qualified candidate, then it's up to the Congress to confirm her or not. It's not like there's been a push for only Yale or Harvard grads on the Supreme Court. Those were just the most qualified candidates that were confirmed at the time they were added to the bench. And a little elitism is good. I want people who are smarter than me & went to better schools than I did in charge. Not to mention that Pres. Obama met Ms. Kagan while he was in school in Chicago, and our president is from Chicago, so I think the Midwest is still pretty well represented.
Abigail Danner, Indianapolis, IN, USA

Well what do people expect? these are the top two law schools in the country, it only stands to reason that their graduates are the ones who go into the jobs wherein future supreme court justices are chosen from. It is definitely elitist, but then again this is Obama, it wouldn't be his first time being an elitist.
T. Bishop, Abington, PA, USA

"That kind of geographical distinction is not so important any more." Not important? Where the judge comes from is VERY important. The political thinking of people from Montana are not the same as those from California just because they have net access and watch the same TV shows any more than the thinking of the UK and France are the same.
James Hart, Virginia Beach, USA

To suggest that educational homogeneity would have the same effects of other forms of homogeneity such as socioeconomic status is a fundamentally flawed comparison. The fact that the justices will now have one of two educational pedigrees is obviously not entirely coincidental - Yale and Harvard are outstanding legal institutions that produce great legal practitioners. Let's also remember that justices are not representatives of the population at large and their job is to interpret the law, a position for which most rigorous critical analysis of the law should be applied.
Jess, New York, NY, USA

The political reality is that Court nominations are already driven by identity politics and short-term ideological fear and loathing, as much as they are by judicial qualifications. There's no need to add the source of a nominee's education and geography into that volatile mix.
RJ, Elkhart, IN, USA

Hate to have my case before them on the day of the H vs Y game.
dweeb, l.a.

A certain amount of elitism is the American way. President and Senate were not elected by popular vote. The elite were intended to moderate the whims of the electorate. The Supreme Court is now this moderating body. Despite what they may say, both left and right use the judiciary to impose policies that would not be implemented by elected officials. The operations of the Supreme Court remain largely concealed.
John, New York, NY, USA

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