Even before the retirement of Anthony Kennedy this summer, all justices had attended either Harvard or Yale law school. But with the addition of Kavanaugh, the high court passed a new marker of exclusivity: For the first time ever, a majority of the sitting justices once served as Supreme Court law clerks.
This amounts to more than a peculiar fact of biography. It demonstrates how narrow and selective the path to the Supreme Court has become. Most of these justices have emerged from insular, privileged backgrounds in the meritocracy. The two most recent justices, Kavanaugh and Neil Gorsuch, attended the same preparatory school in suburban Washington, and Chief Justice John Roberts himself graduated from a prep boarding school in northern Indiana.
Appointed for life, justices like Kavanaugh, who is only 53, are in a position to shape the nation's law for decades. Among the controversies the justices are likely to resolve in coming years are those testing partisan gerrymanders and voting districts; abortion rights and health care; and the reach of environmental, consumer and other regulatory protections.
But unlike some of the litigants who come before the high court, the majority has simply not faced economic hardship or discrimination in their adult lives.
Sonia Sotomayor, who became the first Latina justice in 2009, gave voice to her distinct experience in a 2014 affirmative action case. She referred in a dissenting opinion to the debilitating effects of discrimination.
"Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: 'I do not belong here,'" Sotomayor wrote.
She and Justice Clarence Thomas, only the second African-American on the bench, have brought diversity to the court, to be sure. And with the 2010 addition of Elena Kagan, three women justices now sit among the nine. (The third, Ruth Bader Ginsburg, is also the only current justice not to graduate from Harvard or Yale law schools. She attended Harvard Law, then transferred to Columbia.)
Still, most justices have similar biographies and have belonged to the upper echelons throughout their lives, not merely with Ivy League education but now based on their judicial clerkships.
These one-year clerkship opportunities go to individuals perceived as the cream of the legal crop. Clerkships provide young standouts -- usually those who earlier snagged prominent lower court clerkships -- with the chance to see up close how the law of the land is decided. Each justice is allowed four law clerks, who help screen the thousands of petitions that come in for review, assist in preparation for oral arguments and draft opinions.
Judicial clerkships often become golden tickets to prominent academic jobs, top positions in government, and eventually lifetime appointments on all three levels of the federal bench.
Only eight justices in the history of the Supreme Court were law clerks, and five of those justices now sit together. The three earlier justices were Byron White, who served 1962-1993 and had clerked for Chief Justice Frederick Vinson; William Rehnquist, who was an associate justice from 1972 to 1986 and chief justice from 1986 to 2005, and who clerked for Justice Robert Jackson; and John Paul Stevens, who served from 1975 to 2010 and clerked for Justice Wiley Rutledge.
Here are the five sitting clerk-turned-justices and their pedigrees:
Chief Justice Roberts, Harvard law, clerked for Rehnquist, succeeded him as chief justice in 2005.
Associate Justice Stephen Breyer, Harvard law, clerk to Justice Arthur Goldberg, appointed to high court in 1994.
Elena Kagan, Harvard law, clerked for Justice Thurgood Marshall, appointed in 2010.
Neil Gorsuch, Harvard law, clerked for Justices White and Kennedy, appointed in 2017.
Brett Kavanaugh, Yale law, clerk to Justice Kennedy, confirmed and sworn in on Saturday.
When President Donald Trump unveiled the Kavanaugh nomination in early July, he stressed Kavanaugh's "impeccable credentials."
The President observed that his nominee had graduated from Yale Law School, become "a brilliant jurist" on a US appeals court, and Trump added for good measure that "and just like Justice Gorsuch, he excelled as a clerk for Justice Kennedy."
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