Save the U.S. From the Harvard-Educated Oligarchy

Back Bloomberg Feb 23, 2016 By Justin Fox

The late Justice Antonin Scalia argued last year that there was something wrong with having a Supreme Court composed entirely of people who had studied at Harvard and Yale law schools. You may disagree with the larger point he was making — the observation was part of his dissent to the court’s landmark same-sex marriage decision — but you’ve got to admit that it’s pretty weird that the members of the nation’s highest judicial body are drawn from only two schools. (Ruth Bader Ginsburg got her law degree from Columbia, but spent two of her three law-school years at Harvard.)

The justices’ post-law-school careers have been similar too.

From Adam Liptak in the New York Times: 

“Three of the current justices are former Supreme Court law clerks. Only one has served as a trial judge, and none has served on a state court. Not one has run for public office.

“All of the justices but one are former federal appeals court judges. With one exception, those eight served on what might be called the court of appeals for the Acela Circuit, in Boston, New York, Philadelphia and Washington.”

read the full article here

This isn’t the way things used to be. In the past, former governors, U.S. senators and even a former president (William Howard Taft) served on the high court; appellate experience and fancy law degrees were not prerequisites. That’s partly because in the early days there were no appeals courts (Congress created them in 1891) or law schools (Harvard’s, effectively the oldest, was founded in 1817). But presidents kept appointing justices without law degrees well into the twentieth century — the last such appointment was Robert H. Jackson in 1941.

The Supreme Court is an extreme case, but there are other examples of American institutions becoming narrowly credentialist in their hiring approach. Northwestern University professor Lauren Rivera caused a stir a few years ago with her research finding that elite investment banks, law firms and consulting firms seriously considered candidates from only a handful of top schools. And multiple studies have documented that to get an academic job at a prestigious university you have to have an academic degree from a similarly prestigious university.

You’d think the results-oriented business world would be more open to people from less prestigious schools, and to some extent it is. But looking at chief executive officers of Fortune 500 and Standard & Poor’s 500 Index companies in 2015, the top three undergraduate alma maters were still Harvard, Princeton and Stanford, according to the executive search firm Crist Kolder Associates. (Cornell came in fourth and the University of Michigan fifth.) Chief financial officers presented a more interesting mix, with the universities of Notre Dame, Pennsylvania, Indiana, Stanford and Illinois making up the top five, in that order.

On the Bloomberg billionaires list, prestigious university affiliations are standard. Among the top Americans on the list, Bill Gates and Mark Zuckerberg attended Harvard (although of course they didn’t graduate), Warren Buffett went to the University of Pennsylvania as an undergrad before transferring to the University of Nebraska and got a master’s degree from Columbia, Jeff Bezos graduated from Princeton, Bill and Charles Koch each got multiple degrees from the Massachusetts Institute of Technology, Larry Ellison dropped out of both the University of Illinois and the University of Chicago, and Sergey Brin and Larry Page were both Ph.D. candidates at Stanford when they founded Google. It’s not until you get to the three Walton siblings that you encounter people untainted by high-prestige- university affiliation (though one of the three, Rob, has a Columbia law degree).

The tendency toward fancy degrees is also apparent in national politics. Of the five people who seem to have a real shot at winning a major party’s presidential nomination, only Marco Rubio (University of Florida undergrad, University of Miami law) doesn’t have a high-prestige credential. The last presidential election in which neither candidate had a degree from a current top-10 school was in 1984, when Ronald Reagan (Eureka College) beat Walter Mondale (Macalester College undergrad, University of Minnesota law).

Is this a problem? Scalia argued that if the Supreme Court restricted itself to purely legal rulings it wouldn’t be, but since it also makes political decisions it ought to be more representative of the population. If you take that reasoning too far you risk arriving at something like U.S. Senator Roman Hruska’s infamous defense of Supreme Court nominee G. 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, and a little chance?

Still, there’s surely something to the argument that governance by a narrow elite, even if it’s a meritocratically chosen one, is problematic.

Another important question, though, is whether a selection process dominated by high-prestige universities really does deliver the best people. Scalia, a graduate of Georgetown and Harvard Law School, seemed to think so. Here’s how he described his method of hiring law clerks in 2009:

By and large, I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, O.K.?

Fellow justice Clarence Thomas (Holy Cross undergrad, Yale law) has followed a different approach, on occasion reaching way down in the law-school rankings for his clerks because, as he argued in 2012, “There are smart kids every place.”

People in business circles, especially out in Silicon Valley, have begun warming to this line of reasoning. Google, which used to pore over the test scores and college transcripts of job candidates, did an analysis in 2010 that “revealed that academic performance didn’t predict job performance beyond the first two or three years after college,” the company’s head of People Operations, Laszlo Bock, wrote in his book “Work Rules!” Stanford professor and entrepreneur Sebastian Thrun offered his artificial learning course online to anyone who wanted to take it in 2011 and found that 400 of his online students did better on the final exam than any of the Stanford students who had taken the class. Venture capitalist Michael Staton argued in 2014 that “the traditional credential is rapidly losing relevance” in the job market because there are now much better ways to assess competence than a university degree.

Part of the problem with relying on university admissions officers to select our meritocracy is that the admissions process, especially at the undergraduate level, isn’t all that meritocratic. Having very wealthy parents or parents who graduated from the school gives you a leg up in admissions at the most prestigious universities. Also, the whole process is inevitably tilted in favor of kids with affluent, educated parents.

Even an unbiased meritocratic selection system, though, selects for skills and behaviors that won’t necessarily turn out to be the most valuable ones later on. It beggars belief that a college or graduate-school admissions officer really can — based on grades, test scores, extracurriculars and an essay or two — reliably select the young people with the potential to accomplish the greatest things. People have different talents, and reveal them at different ages. This is a nation of reinventions and second chances. Maybe we ought to try harder to make our Supreme Court, and some other institutions, reflect that.

“This column originally ran in Bloomberg News and is being re-run here as part of Comstock’s magazine’s partnership with the publication. The column does not necessarily reflect the opinion of the editorial board of either publication or their owners.