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]
Continue reading the entire piece here at Harvard Journal of Law & Public Policy
______________________
Andy Smarick is a senior fellow at the Manhattan Institute. Follow him on Twitter here.
Photo by SimpleImages/Getty Images