When Ketanji Brown Jackson took her seat on the U.S. Supreme Court this summer, she diversified the court in a historic way: She is the first Black woman to sit on the nation’s highest court. This is an important achievement in a country that for generations treated Blacks and women, by law, as something less than full members of society.
In some ways, though, she did not diversify the court at all. In fact, in nominating Brown, President Joe Biden perpetuated a trend that goes back decades: We have a court dominated by graduates of just two Ivy League law schools. Jackson graduated from Harvard Law. So did three other justices: Neil Gorsuch, Elena Kagan and John Roberts. Four others – Samuel Alito, Brett Kavanaugh, Sonia Sotomayor and Clarence Thomas went to Yale. That’s eight of nine justices who graduated from just two elite institutions. In some ways, it was Donald Trump who diversified the court, by nominating Amy Coney Barrett, who graduated from Notre Dame’s law school. She’s the only non-Ivy Leaguer on the court. Before Barrett, the court was entirely composed of Ivy Leaguers – Ruth Bader Ginsburg graduated from Columbia University’s law school.
I have written several columns recently about geographical diversity – or, more often, the lack of geographical diversity – on state boards and commissions, especially the governing bodies of state colleges and universities. The picture is very much mixed: Gov. Glenn Youngkin, unlike his two Democratic predecessors, has no one from the western third of the state in his cabinet, which seems unusual for someone who was elected on the strength of rural, western votes. On the other hand, Youngkin did geographically diversify the boards of Longwood University, the University of Virginia and Virginia Tech with his first round of appointments. After two Democratic governors, Longwood’s board had no one from west of Farmville, the Virginia Tech board no one from west of Staunton and the Virginia board no one from west of Vinton. Youngkin’s appointments address all those geographical gaps. He also added more geographic diversity to the Board of Education. On the other hand, the only member on the state community college board from outside the urban crescent wasn’t reappointed, so now that board has no one from Southwest or Southside.
When society talks about diversity, we generally mean gender or race, and there are solid historical reasons for that. Those aren’t the only types of diversity, though. Many of our issues in Virginia have some regional implications – funding formulas for roads and schools, for instance – so that’s why my focus is through that geographic lens. The U.S. Supreme Court – or, for that matter, the entire federal government – generally isn’t something I pay much attention to. However, in some ways it’s one of the least diverse institutions in the land, at least when you look at it through an educational lens. The American Bar Association has accredited 199 law schools, yet just two of them have produced eight of the nine justices on the current court. It didn’t use to be this way. Curiously, as the nation has become more diverse – in all sorts of ways – the court’s educational background has become less diverse.
Barrett joined the court in 2020. Before that, we have to go back to 1981 to find another non-Ivy Leaguer coming on the court. That was Sandra Day O’Connor, the court’s first female justice. When she joined the court, the other justices were graduates of Howard University, Northwestern University, Yale, the Mitchell Hamline School of Law in Minnesota – plus one justice (Lewis Powell of Richmond) who had law degrees from both Harvard and Washington & Lee University. O’Connor went to law school at Stanford University.
From then until Barrett, every single successful nominee was an Ivy Leaguer, so this is a concentration perpetuated by Democrats and Republicans alike. I have no doubt that Harvard and Yale are fine schools, but are we really to believe that they deserve a near monopoly on the nation’s highest court? The court may be sharply divided ideologically but not educationally. In fact, seven of the nine justices went to Ivy League schools as an undergraduate: three to Princeton University, two to Harvard, one apiece to Columbia and Yale. The two exceptions are Thomas, who went to College of the Holy Cross in Massachusetts, and Barrett, who went to Rhodes College in Memphis. That means eight of the nine justices went to college in the Northeast and all nine went to private colleges. This does not seem like a court that looks like the country.
Further, eight of the nine justices were previously appeals court judges; Kagan, who was solicitor general, is the exception. In some ways this is a natural progression up the judicial organizational chart, but in many ways it’s a departure from the past. Again, let’s go back to the court that O’Connor joined in 1981. Then just four of the nine justices were former federal appeals court judges. Two had been elevated from posts in the U.S. Attorney General’s office, two had been state judges (in New Jersey and, in O’Connor’s case, Arizona). One, Powell, had been in private practice. Would not the court benefit from a justice, of whatever ideology, who had some life experience other than going to an Ivy League school and winding up on a federal appeals court?
Enough of the federal government. Let’s see how the Virginia Supreme Court compares and contrasts. Pretty well, I think. Virginia has seven justices. Three graduated from law school at the University of Virginia, two from the University of Richmond, one from the College of William & Mary and one from American University. That’s a lot more educational diversity than the U.S. Supreme Court, even though that court is drawing from the whole country and we’re just drawing from a single state. Our justices have more educational diversity at the undergraduate level, too. Three graduated from the University of Virginia, and then one apiece from Emory & Henry College, Harvard, New York University and Old Dominion University.
The 17 justices on Virginia’s Court of Appeals aren’t very diverse geographically – only one, Frank Friedman of Roanoke, is from west of Charlottesville. But they do have diverse educational backgrounds. Three went to law school at the University of Virginia, three to William & Mary, two to the University of Richmond, and then one apiece to Dayton University, George Washington University, Howard University, Mercer College, University of New Hampshire, Texas Southern University, Vanderbilt University, Washington & Lee and Widener University.
Their undergraduate education is even more diverse: Four went to the University of Virginia, two went to Harvard, and then one apiece to Florida A&M, Gettysburg College, Hampden-Sydney College, Le Moyne College, Maine, Mary Washington, Mississippi, Princeton, Virginia Commonwealth University, Washington & Lee and William & Mary. That’s 17 justices from 13 different schools. One justice – Clifford Athey of Front Royal – went to what was then Lord Fairfax Community College before going on to VCU.
I’ve got to think that kind of diversity is better for the court than not having that diversity.
None of us knows when the next vacancy on the U.S. Supreme Court will come, but we all know that whenever it does, it will be ferociously contested. I hope whoever that president is will look to Virginia for inspiration and pick a nominee with a different background than any of the present justices.