Judicial Diversity

Massachusetts’ educational system changed far more than the United States’ schools and colleges. Northeastern control of education also led to control over American courts and law.


Original Design of the United States Judicial System

When the United States was founded, attorneys were trained primarily through a system of apprenticeship and self-study. Candidate apprentices worked and studied under the direction of a local judge, political official, or private attorney. Wealthier candidates sometimes supplemented practical experience with private tutorials or other instruction. In order to become an attorney, apprentices were required to pass a bar exam administered by their state of residence.

When the original United States Supreme Court was constituted, it was composed of six justices. The six justices were nominated from each one of the six federal appellate “circuit courts” originally constituted by Congress. Each justice acted as a liaison to their native “circuit court” by riding a horse along the “circuit” of appellate hearings, which were scheduled throughout the applicable geographic region. Article III, Section 1, of the United States Constitution refrained from requiring any license, test, or credential for nominees to the Supreme Court. Article II, Section 2, provided that the sole eligibility requirements for a justice were nomination by the president and confirmation by a Senate majority.

President George Washington expressly distributed his Supreme-Court nominations, drawing evenly from the circuits and states then in existence. Justices were to be added to the Supreme Court when new circuits for new states were added to the national court system. Judges for the circuit courts and the trial-level district courts were similarly chosen from the applicable local populations, to prevent foreign rule.

This original arrangement ensured cultural democracy in the legal culture. It did this by preventing domination of the entire American judicial system by any small group, socio-economic clique, intellectual circle, or geographic locale. The idea was to select Supreme Court jurists who were independent and self-made. The Founders understood that a judge trained in Georgia was not readily interchangeable with a judge weaned in Massachusetts or groomed in the District of Columbia.

The net effect of the training, practice, and nomination protocols guaranteed that justices would be steeped in the diverse legal traditions and political philosophies of the various states from which they hailed. Although the Supreme Court was not an elected institution, it embodied the loosely representational structure of the national court system. Additionally, since a diverse and independent-minded group of jurists is difficult to control, the Court was less susceptible to ambitious, prolonged attempts to accomplish any particular activist agenda.


Changes Brought by the Ethic of Reconstruction and Standardization

The enticing advantages of court-packing proved irresistable, and the Founders’ original arrangement was gradually discarded. After the Civil War, national politicians relied upon patronage and foreign-resident judicial nominations to impose legal order (particularly with respect to unruly Southerners and recalcitrant Western Mormons). The original focus upon cultural self-representation in the law was significantly weakened by the Platonic approach, and never fully restored.

During the same post-Civil-War period when legal cultural self-representation was waning, Massachusetts was aggressively promoting mandatory, standardized education for all common schools and colleges. A change of emphasis was slowly accomplished, so that judicial selections were politically promoted on the basis of a nominee’s academic credentials, rather than the nominee’s ability to reflect the cultural views of the region which he or she indirectly represented.

Once the emphasis shifted to academic credentialing, the Northeast was able to leverage its hold upon academia to achieve control over the judicial system. In particular, law schools at Harvard and Yale managed to become sieves for the selection of most top judicial (and prosecutorial) positions in the federal and state governments. These colleges also became the primary intellectual source for many legal norms and model statutory codes. The cumulative effect of this movement was striking.

It is difficult to parse biographies and categorize training, but between 1789 and 1900, around fifty-three of the justices who were nominated to the United States Supreme Court had never graduated from any law school. Only five justices graduated from any law school. Only eleven justices, including three of the justices who graduated from law school, had studied for any period of time with an elite law school (as assessed from both historic and contemporary standards). This pattern prevailed despite the fact that William and Mary Law School was founded in 1789, Harvard Law School was established in 1817, and England was offering formal legal training well prior to the Revolutionary War.

After 1900, ten more United States Supreme Court justices were nominated who had no degree from any law school. In 1928, only four states required law school coursework to sit for the bar exam. William P. Quigley, Introduction to Clinical Teaching for the New Clinical Law Professor: A View from the First Floor, 28 Akron L. Rev. 463, 466 (1995). Thus, until well after 1900, justices were drawn from a wide variety of intellectual, geographic, political, institutional, and economic backgrounds. Many of them were home-educated. Justice Robert Jackson, lauded as the favorite justice of Antonin Scalia, was one such man. The storied Justice Jackson was home-educated, and never graduated from law school. He penned the majority opinion in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), an important case for alternative educators.

Legal apprenticeship made it possible for enterprising individuals of modest means to become attorneys, without incurring large financial or political debts. Apprentices learned law through supervised, practical experience, and self-study. Law schools changed the dynamic significantly. The number of law schools grew so that there were fifteen in 1850, twenty-one in 1860, thirty-one in 1870, fifty-one in 1880, sixty-one in 1890, and one hundred and two in 1900. David D. Garner, The Continuing Vitality of the Case Method in the Twenty-First Century, 2000 BYU Educ. & Law J. 307. In 1850, twelve states had at least one law school, while nineteen states had no law school. Id. By 1900, thirty-three states had law schools, and only thirteen lacked one. Id.

After a fierce battle, the proponents of law school succeeded in implementing bar-admission requirements to exclude apprenticed and self-educated competitors. Quigley, 28 Akron L. Rev. at 466. Today, only a few states still permit apprenticeship as an independent route to bar admission. Bar admission, in turn, is a practical prerequisite for judicial appointment to the federal and state courts.


Era of Court Nominations from Diversified Law Schools

Even after the widespread utilization of law schools, the United States initially managed to retain some degree of intellectual diversity on the Supreme Court.

From 1910 to 1972, Presidents successfully nominated eleven graduates from Harvard Law School. Thirteen additional nominees graduated from other law schools in the Ivy League, or from honorary affiliates of the club (Stanford University and Northwestern University). However, the remaining sixteen justices graduated from other law schools across the country, including the Universities of Alabama, California, Cincinnati, Colorado, Indiana, Kansas City, New York, Texas, and Virginia, as well as Howard University and Washington and Lee.

Most of the law schools in the United States were, however, developed from the Harvard institutional template. Teaching methods, curriculum, textbooks, customs, legal norms, tests, and professors were eventually dictated by one dean at Harvard University, and at bottom were designed to economically benefit the Ivy League establishment. See Garner, 2000 BYU Educ. & Law J. at 307 (discussing "an academic fiat by a single man: Christopher Columbus Langdell, Dean of Harvard Law School, in the early 1870s"). Law schools were compelled to structure themselves in a specific fashion to be accredited by the American Bar Association.

If a law school failed to obtain accreditation, other law schools effectively boycotted that school by refusing to accept its transfer students or hire its graduates. Even more importantly, most states refused to let that recalcitrant school's graduates sit for the state bar exams. This arrangement has been challenged on antitrust grounds, to no avail. See, e.g., Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass'n, No. 96-1792 (3d Cir. 1996). Courts have developed a theory that monopolistic restraints of trade are legal if the schemes are implemented through state-government legislation, rather than through a conspiracy consisting only of private actors. Parker v. Brown (1943); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961). This explains why law schools, as well as public schools throughout the United States, have been spared from criminal and civil sanctions under the federal Sherman Antitrust Act.

In like manner, legal codes and reforms were promoted by using laws schools as the conduits for achieving implementation. Programs were structured to favor law students who conformed with the wishes of the law-school faculties. Legal reformers sought to replace public election of state judicial officials with judges who were selected and controlled by unelected, professional committees. An incestuous, interchangeable network of personnel was formed between the elite academic faculties and many key professional practitioners. Consolidation lead to an echo chamber of epic proportions.

Predictably, the centralizing trend proved to be very detrimental for alternative education and parental liberty. Benefactors of the Massachusetts system were determined to tighten their control over all forms of education. Parental rights and alternative education were barriers to the suppression of potential intellectual competitors. Many Ivy-League jurists were successfully inculcated to favor compulsory attendance, government oversight, accreditation, teacher certification, and cultural genocide.


Era of the Consolidated Court

The current nine-justice Supreme Court, circa 2006 and filled with jurists appointed since 1975, has a six-justice majority that was primarily trained at one law school – Harvard University (Justice Ruth Ginsburg studied two years at Harvard, and one year at Columbia). Two of the remaining justices graduated from Yale Law School. The ninth justice, octogenarian John Paul Stevens, is a graduate of Northwestern University who is from a bygone political era (born in 1920, he is expected to retire soon). An enormous amount of power is now concentrated in the hands of the law professors who control two law schools.

Even the involvement of three schools probably exaggerates the true degree of intellectual diversity on the Supreme Court bench. All of the aforementioned law schools are situated in two small, distinct, politically-similar geographic regions: the “Kennedy Corridor” running from New York City to nearby Boston, Massachusetts, and Chicago in Cook County, Illinois. All three schools are known to exchange a large number of faculty and students. The faculties of these three schools have a history of being, with a few exceptions, hostile to alternative education and the lifestyles of alternative educators. A comparable breadth of intellectual diversity could be achieved by recruiting all Supreme Court justices from Alabama, Mississippi, and Tennessee.

Today there is not a single justice who has earned a primary law degree from a public law school or a religion-sponsored law school, even though statistical probabilities suggest there should be such a presence if the slection criteria are based upon objective ability. Qualified candidates are disproportionately screened out if, for example, they are married, middle-class, debt-adverse, in low-paying public-service work, or partial to a local education (high achievers in other professions often have these characteristics). For participation in the judiciary, the key criteria is the acceptance of colleagues in the existing Ivy-League network, rather than any objective measure of intelligence or the ability to reflect the views of the general populace.

Justice Antonin Scalia recently acknowledged the triumph of connections over merit and independence relative to the judicial selection process. "Many justices have reached this Court precisely because they were friends of the incumbent President or other senior officials." Memorandum of Scalia, J., No. 03-475 (March 18, 2004). He recited numerous examples of intimate fraternizing between justices and Beltway litigants, and indicated that a rule requiring independent arms-length judicial review of Washington officials "would be utterly disabling" for the Court as currently constituted. Id.

Increased centralization appears likely over the foreseeable future. Selection of new justices is increasingly gravitating towards Ivy Leaguers who have previously clerked for other Supreme Court justices. In fact, an attempt has already been made to put a justice and his former law clerk together on the bench, despite the systemic conflict-of-interest which would result.

Supreme Court behavior has a trickle-down effect. Predictably, a pronounced majority of all Supreme-Court law clerks hark from the alma maters of the current Ivy-League justices. Many federal circuit-court judges, who also tend to be chosen from Ivy League schools, recruit only Ivy-League graduates in order to maximize the odds that one of their clerks will subsequently be chosen for a Supreme-Court clerkship. Similar considerations motivate many selections of federal district-court judges, state supreme court justices, United States Justice Department positions, and law-school faculty.


Conclusion

Checks and balances are as critical for a well-heeled judiciary as for a legislative or executive branch of government. Intellectual diversity is critical, and often has more of a practical effect upon outcomes than demographic or geographic diversity. Similarly, academic credentials cannot serve as an adequate substitute for impartiality and arms-length legal analysis.

Alternative educators, as well as the general public, are better served by a diverse, decentralized, impartial system of law. Judicial training, selection, and nomination have a profound impact upon the protection of liberty and economic choice.