“Show Us Your Pedigree.” The Elite College Pipeline To The Supreme Court

In the past four decades, more than two-thirds of Supreme Court law clerks have graduated from one of just five law schools – Harvard, Yale, Stanford, Columbia and the University of Chicago, and 94% of the clerks have come from law schools ranked in the top 25 by U.S. News and World Report (more on that later).

The findings appear in a new study entitled Some Are More Equal Than Others: U.S. Supreme Court Clerkships by Tracey E. George (Vanderbilt University Law School), Albert H. Yoon (Toronto University Faculty of Law) and Mitu Gulati (University of Virginia School of Law). It’s available on line as Virginia Public Law and Legal Theory Research Paper No. 2023-10 Virginia Law and Economics Research Paper No. 2023-03.

Supreme Court clerkships hold a special interest because they’ve long been considered one of the most prestigious and coveted early positions in legal careers. In order to examine the relationship between law school education and Supreme Court clerkships, the authors collected the names of the Court clerks from Wikipedia for the period of 1980 through 2020. This yielded a total of 1,426 former clerks, including both those clerking for sitting and retired justices.

The authors then gathered additional information on the clerks’ gender, ethnicity, undergraduate and law school education, and indicators of academic performance.

The extent to which elite law schools dominated the selection of Court clerks is further revealed by the fact that just two schools – Harvard and Yale – accounted for 45% of all the clerks during the period studied.

In other findings, males comprised 69% of Court clerks over this period, with a trend over the 40 years for women to make up a larger percentage. Still, even in the most recent years, men comprised nearly 60% of Court clerks, while women comprised the the majority of law school students.

Over the entire period, 87% of Court clerks were white. Of the remaining 13% – equal to 188 clerks – 100 were Asian-Pacific Islander, 48 were Black, 14 were Hispanic, and for 26, the authors could not identify the clerk’s race.

The preference for graduates from the most selective schools extended across all the justices, who select four clerks per term. That pattern might not be too surprising given that eight of the current nine justices graduated from the law schools of Harvard or Yale. Amy Coney Barrett is the exception, she is an alumna of University of Notre Dame Law School.

Chief Justice Roberts had 58 clerks during this period; 37 came from Yale or Harvard, and only one graduated from a law school out of the top 25 (University of Georgia). For her 46 clerks, Justice Sotomayor selected 21 from Harvard or Yale, and just two from outside the top 25 (Brooklyn and Hawaii). Justice Clarence Thomas, who the authors write, has “a reputation of hiring across a range of law schools,” chose more than half (62) of his 119 clerks from Yale, Harvard, or Chicago, with only 15 clerks drawn from law schools outside the top 25.

It turns out that where you went to undergraduate school matters too, even if you graduated from one of the most prestigious law schools. To examine this pattern, the authors more closely examined graduates of Harvard Law School, in part because it produced the most Court clerks during the period.

Even among graduates who graduated from Harvard Law with honors, those who previously had attended one of 22 selective undergraduate institutions were more likely than undergraduates from less prestigious schools to be chosen as Supreme Court clerks. Most of that advantage was due to students who had attended Harvard, Yale or Princeton as undergraduates.

It’s a double helping of status, and it’s a curious finding. As the authors observed:

“If you have two candidates who finished summa cum laude at Harvard Law, who cares where they went to college? But the irrelevant seems to matter, beyond when it arguably should.

Think about the world of professional basketball by contrast. Does anyone care that Stephen Curry played at Davidson rather than Duke? (in basketball terms, let us think of Duke as the equivalent of Harvard College). No. The fact that Curry was lightly recruited out of high school and ended up at Davidson did not prevent him from becoming a lottery pick for the NBA and garnering numerous individual and team awards.”

The timing of the study is ironic, coming just as a number of elite law schools have recently opted out of the U.S. News law school rankings because they contend they distort the values of legal education that should matter the most. Yes, indeed. But the status markers of these law schools seem to be safely intact, given the privilege the Supreme Court justices continue to show them.

The point, of course, is not that graduates of top-ranked law schools are not superlative students who are likely to become outstanding lawyers. Clearly, most of them are. The point is that the Supreme Court justices appear unable or unwilling to find similarly outstanding students with educational backgrounds other than the most elite.

Perhaps, like their recent, unsatisfying investigation into who leaked the draft opinion of the Dobbs v. Jackson Women’s Health Organization decision overturning the constitutional right to abortion, the justices just aren’t looking hard enough.