WASHINGTON — When Ted Cruz attended Harvard Law School, he liked to study with people who had undergraduate degrees from Harvard, Yale or Princeton. “He said he didn’t want anybody from ‘minor Ivies’ like Penn or Brown,” one of his law school roommates told GQ.
That may strike you as slicing the baloney of elitism awfully thin. But a new study has found that Supreme Court justices do much the same thing in selecting their law clerks.
It is not news that the justices favor a handful of law schools in doling out clerkships, a glittering credential that all but guarantees success in a profession obsessed with status markers. But the study adds another factor: To get a clerkship, it really helps to have gone to college at Harvard, Yale or Princeton.
Albert Yoon, a law professor at the University of Toronto and one of the study’s authors, said the finding was disturbing.
“We don’t really live in a meritocracy,” he said. “The Supreme Court is guilty of perpetuating some of the worst pathologies in American society.”
Each justice typically hires four law clerks per term. The study, which collected data on the 1,426 former clerks in the 40-year period ending in 2020, found that more than two-thirds of them attended just five law schools: Harvard, Yale, Stanford, Columbia and the University of Chicago. Chief Justice John G. Roberts Jr., for instance, chose 58 clerks in the period covered by the study, 37 of them from Harvard or Yale.
You might think that doing well at one of those law schools and then obtaining a prestigious clerkship with a federal appeals court judge would check the necessary boxes. But it turns out that undergraduate degrees seem to matter, too. Going to college at Harvard, Yale or Princeton — even after controlling for law school grades — gave applicants a significant boost, the study found.
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Mr. Cruz, now a senator from Texas, may be a case in point. He graduated with honors from Harvard Law School and served as a law clerk to Judge J. Michael Luttig before going on to clerk for Chief Justice William H. Rehnquist. And Mr. Cruz went to college at Princeton.
The study, conducted by Professor Yoon, Tracey E. George of Vanderbilt University and Mitu Gulati of the University of Virginia, focused on Harvard Law School. It has long produced the most Supreme Court law clerks, partly because of its prestige and partly because it is much larger than some of its rivals. (A larger proportion of Yale Law School graduates have served as Supreme Court clerks.)
The study, which considered 22,475 Harvard Law graduates, took account of three data points: where they went to college, whether they qualified for academic honors in law school (graduating cum laude, magna cum laude or summa cum laude) and whether they obtained a Supreme Court clerkship.
About half of the graduates had attended one of 22 selective undergraduate institutions, and more than a fifth of the graduates had gone to college at Harvard, Yale or Princeton. Both of those groups graduated with honors from Harvard Law at above-average rates.
But here is the key point: Even controlling for achievement in law school as measured by academic honors, members of the two groups were more likely than their peers to obtain Supreme Court clerkships. And most of the difference could be traced to students who had gone to college at Harvard, Yale or Princeton.
They were three times more likely to get clerkships as those who had gone to the other 19 undergraduate institutions when graduating with cum laude honors and 50 percent more likely when graduating with magna cum laude honors. Both differences were statistically significant. (Summa cum laude honors were very rare and very often led to clerkships regardless of undergraduate institution.)
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The bottom line, Professor George said, is that the road to a Supreme Court clerkship starts in college.
“Elite law school degrees don’t repair or overcome a lower-status undergraduate degree,” she said. “You can’t scrub your undergraduate degree with a law degree.”
Professor Gulati said there is something disturbing about this given that Supreme Court clerkships are government jobs, and clerical ones at that.
“The process seems highly biased toward elite private schools,” he said.
The problem, Professor Yoon said, was not with the young lawyers who made the cut. “The people who get Supreme Court clerkships are great,” he said. “But there are a lot of great people who don’t get it.”
The justices themselves are products of elite educations. Eight of them attended law school at Harvard or Yale, and six of them have undergraduate degrees from Harvard, Yale or Princeton. And six of them had themselves served as law clerks at the Supreme Court.
There can be a clubby quality to the justices’ remarks about the schools they attended. Chief Justice Roberts, who has two Harvard degrees, was asked in 2009 whether Supreme Court justices “could relate to ordinary folks.”
The chief justice said he wanted to dispel a myth. “Not all justices went to elite institutions,” he said. “Some of them went to Yale.”
