In today’s political climate, railing against the intellectual (not economic) elite has reached an anti-expertise fever pitch. It might be tempting in this climate to dismiss Benjamin Barton’s forthcoming book, The Credentialed Court: Inside the Cloistered Elite World of American Justice, as just another such diatribe. It is not. Instead, Barton’s book proves what scholars have long intuited: that while the Supreme Court facially appears more diverse than in the past, in other ways the court has rarely been so homogenous. Plus, it is such a juicy and delightful read you won’t feel like you’re reading for work.
Ben Barton’s book is a combination of straightforward data and entertaining storytelling. The first few chapters are a delicious highlights reel of the early Supreme Court appointees, full of colorful detail and choice tidbits—from a pro-football player to the story of a self-made immigrant who rocked the constitutional convention, won George Washington’s trust, and married into a prominent family – why it’s the stuff musicals are made of (hint: it’s not Alexander Hamilton)! Barton presents all this to argue that past Supreme Court Justices weren’t uniformly studious or bookish but zany, original, and more accomplished in other fields.
However, the manuscript’s assertion that back in the day appointees to the court were less elite or had more quirky backgrounds didn’t entirely convince me. Nostalgia by lawyers for a time when the bar or bench was superior than today is its own myth, rarely rebuffed.1 The chapters on early appointees indicated equally limited metrics in terms of what made for an appointee—first they were all a certain gender (male), certain race (white) and overwhelmingly from a certain faith (protestant). It seems that once he met that criteria, an appointee could be idiosyncratic in various ways. As a group, these early appointees were also politically well-connected, often with prominent family connections, and extremely well-educated by the standards of the day–either through law school or a prestigious apprenticeship (as Barton notes “a good apprenticeship was the 18th century’s version of law degree”). (P. 71.) As for more past appointees growing up on farms and in small towns—such trends align with those of the general American population which increasingly lives in cities and suburbs rather than rural areas.2
This disagreement aside, the book’s thesis is convincing: the criteria for contemporary Supreme Court Justices are exceedingly narrow. Where the book really takes off is the meticulous picture it paints of today’s Court. The latter part of the manuscript’s data mines the geographic, work, economic, familial, and educational backgrounds of all Supreme Court Justices through Justice Coney Barrett. Here Barton lays out with clarity the commonalities among the Court’s Justices and how uniform they are—some justices down to the very same prep school and Supreme Court clerkship (Gorsuch and Kavanaugh). The new nepotism is one in which a person’s higher education credentials stand in the place of old family names and lineages—you are from the house of Harvard, Yale, or, cloaked in its Harvard-esque brick, Stanford (the nouveau riche set on the cotillion circuit). Specifically, Barton demonstrates unflinchingly that recent Court appointees overwhelmingly graduated from a few undergraduate and law schools, obtained Supreme Court clerkships, and have little practice experience (if any at all). Thus, outstanding intellectual achievement narrowly measured by a few metrics (elite education, law professor positions, clerkships, and highly specialized elite legal jobs), carries the day almost completely rather than other outstanding relevant experiences and achievements, such as law practice or public service.
The book’s normative plea to broaden the conception of merit used to select Supreme Court justices is compelling. Barton argues that intellectual virtuosity demonstrated in this singular elitist mode should not somehow overshadow all other considerations—particularly what he terms “practical wisdom.” Barton’s “practical wisdom” is grounded in experience, ideally of a generalist nature, which he contends allows judges to respond with flexibility to new situations. He argues throughout the book that members of the Supreme Court should be selected because they are outstanding human beings, who have made exceptional contributions in a broad array of legal and political fields (I wouldn’t mind a scientist on court either).
Barton highlights the virtues of this breadth of experience, which he suggests includes more empathy towards and knowledge of a variety of Americans, the ability to compromise, the likelihood of writing more straightforward opinions, and practice evidencing a commitment to the common good. Barton makes it clear the current system where we have intellectually brilliant (and well-connected) Justices has significant drawbacks in terms of certain perspectives (lacking) and work product (inscrutably written opinions). I agree with Barton, the path to being on the Supreme Court is far too narrow and so much is lost along the way. The question is: how do we bring about the alternative? Barton argues that Court members should be selected for “practical wisdom” but it is hard to see, particularly in a country as divided as ours, how to avoid deep and ugly disagreement regarding the meaning of “practical wisdom” when it comes time for the painful ordeal that is the modern Supreme Court confirmation.
I wonder if perhaps the answer lies in interrogating further why and how the path to the Supreme Court has narrowed in terms of intellectual elitism just as the Court has grown more gender and racially inclusive. Are these tendencies are not just correlated, but causally related? As more women and people of color entered the shortlists for appointees in the last 50 years, those nominees (and the Presidents nominating them) likely confronted presumptions of incompetence and negative bias.3 Evaluating candidates in an increasingly racially and gender diverse pool, Presidents may have felt the need to publicly justify their nominations in terms of “objective” criteria of “traditional” merit both to combat presumptions and to attempt to combat concerns about bias.
Thus, criteria like past judicial appointments and elite educational credentials grew in importance. Knowing the demographics of students at elite schools and consequently of Supreme Court clerkships, elite law firms, and then bench, this “neutral” criteria effectively eliminated many otherwise qualified candidates from consideration who did not have the necessary means, savvy, or connections to gain entrance to elite law schools and elite legal institutions. Likewise, demonstrated elite credentials that “tun[e] out noise of the outside world,” (P. 255, quotations omitted) like appellate judging and professorships, signal intellectual and elitist assimilation and reassure those voting on the nominations that any racially and/or gender diverse candidates are vested in the institutions they value.
In short, it may have become an asset, rather than a liability, to be disconnected from “the outside world” – precisely because the “outside world” of women, women of color, and people of color was one unfamiliar to those evaluating and working with them. Rather, these elite professional pedigrees and educational experiences demonstrated that such candidates 1) have had atypical life experiences compared to most people in their identity group (and indeed most of the country generally) and 2) may have more common experiences with their equally pedigreed white male brethren who went through similar professional paths and educational establishments. Then at least everyone’s blood runs crimson, right?
- See Norman W. Spaulding, The Myth of Civic Republicanism: Interrogating the Ideology of Antebellum Legal Ethics, 71 Fordham L. Rev. 1397 (2003); Marc Galanter, Why the Haves Get Out Ahead (1974).
- USDA, Rural America at a Glance (2021).
- See Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González, Angela P. Harris Eds., 2012).
