Believe it or not, the Supreme Court used to be interesting

Stephen Breyer, who has served on the Supreme Court since his appointment by President Bill Clinton in 1994, is retiring. Breyer’s retirement might be because the octogenarian wants to enjoy his last few years in peace and harmony. But it’s probably because he doesn’t want to be the next Ruth Bader Ginsburg, whose decision to die in office (something most modern Supreme Court justices do) rather than retire during the Obama administration led to a lot of speculation about whether that was a very bad idea. Ginsburg’s seat now belongs to Amy Comey Barrett, whose big claim to fame might be that she is the only member of the court to have not attended Yale or Harvard.

And that goes for the two candidates likely to replace Breyer, too. President Biden is widely expected to nominate either California Supreme Court Justice Leondra Kruger or Judge Ketanji Brown Jackson. Jackson was confirmed to the federal bench in 2021 and she is thus the likelier candidate, with a similar confirmation process expected (Senate Judiciary Committee Chair Lindsey Graham voted to confirm Jackson and while you can bet that Graham will find some way to explain how she shouldn’t be confirmed now even though he said a year ago that he tries “to be somewhat consistent” in how he votes on Supreme Court justices, you can expect that no Democrats – yes, not even those Democrats – will oppose the nomination).

Both Jackson and Kruger attended, well, either Harvard (Jackson) or Yale (Kruger). If either of them are nominated and confirmed, they will join a club of other people like them (well, okay, they’re also both Black women, so not exactly like them).

Was it always thus? Not even a little bit.

The Roberts Court (2022)

Law SchoolCareer prior to appointment
Chief Justice John RobertsHarvardFederal Judge (D.C. Circuit),
Deputy Solicitor General
Justice Elena KaganHarvardSolicitor General,
Dean of Harvard Law
Justice Samuel AlitoYaleFederal Judge (3rd Circuit),
U.S. Attorney
Justice Neil GorsuchHarvardFederal Judge (10th Circuit),
Principal Deputy, D.O.J.
Justice Brett KavanaughYaleFederal Judge (D.C. Circuit),
White House Staff Secretary
Justice Sonia SotomayorYaleFederal Judge (2nd Circuit),
Federal Judge (S.D.N.Y.)
Justice Clarence ThomasYaleFederal Judge (D.C. Circuit), E.E.O.C. Chair
Justice Amy Coney BarrettNotre DameFederal Judge (7th Circuit),
Law Professor (Notre Dame)
Ketanji Brown JacksonHarvardFederal Judge (D.C. Circuit),
Federal Judge (D.D.C.)
Leondra KrugerYaleSupreme Court Justice (Cal.)
Deputy Solicitor General

The Robert Court began with the confirmation of John Roberts, of course, who was a federal judge prior to that point. Of all the currently sitting justices (excluding Breyer, who may or may not be currently sitting depending on how quickly you read this article), just one – Justice Kagan – was not a federal judge prior to her appointment. Kagan was a solicitor general, the top lawyer for the federal government. Roberts was a deputy solicitor general once, as was potential nominee Kruger.

There’s a logic to this, perhaps. The Supreme Court is the top court and you get to it by climbing your way through lower courts. Your climb might be shorter – Barrett was nominated by one-term President Donald Trump to both her first federal judgeship and the Supreme Court – or longer, but you climb.

The Warren Court (1968)

Law SchoolCareer prior to appointment
Chief Justice Earl WarrenBerkeleyGovernor of California,
Attorney General of California
Justice Hugo BlackU. of AlabamaUnited States Senator
Justice Byron WhiteYalePrivate Practice Attorney,
Deputy Attorney General
Justice Abe FortasYalePrivate Practice Attorney
Justice William O. DouglasColumbiaS.E.C. Chair,
Law Professor (Yale)
Justice John Marshall Harlan IINew York Law SchoolChief Counsel to the New York State Crime Commission,
Federal Judge (2nd Circuit),
Justice Potter StewartYaleFederal Judge (6th Circuit), Cincinnati City Council member
Justice Thurgood MarshallHowardFederal Judge (2nd Circuit),
Solicitor General
Justice William J. BrennanHarvardSuperior Court Justice (N.J.),
Supreme Court Justice (N.J.)

Go back a few decades, though, and things are much different. Notice that Harvard and Yale are joined by other schools: Howard, New York Law, Columbia, University of Alabama, Berkeley. The jobs have changed, too. Abe Fortas was an attorney but had no judicial appointments before the court. Hugo Black was a senator, Earl Warren was the Governor of California. Potter Stewart was a federal judge but before that he served on the Cincinnati City Council.

Landmark cases like Tinker (which protects the First Amendment rights of students who engage in certain protests), Katz (which confirmed that wiretapping was subject to search and seizure restrictions), Curtis v. Butts (it’s about libel and it’s very important and also its called Curtis v. Butts), and Loving v. Virginia (which struck down laws banning interracial marriage) were all penned during the court under the composition above. Under a different composition the Warren court also penned Brown v. Board of Education, Lucy v. Adams, Gideon v. Wainright, Griffin v. Prince Edward County School Board, Jacobellis v. Ohio, Heart of Atlanta Motel v. United States, One 1958 Plymouth Sedan v. Pennsylvania, Griswold v. Connecticut, Miranda v. Arizona, and Harper v. Virginia, which are all landmark civil rights and/or constitutional rights cases, and it’s fascinating how many of them came from this era.

One era where the justices didn’t come from the same track. Other Warren court justices like Sherman Minton (Indiana Univ.; Federal Judge (7th Circuit), United States Senator), Arthur Goldberg (Northwestern; U.S. Secretary of Labor), Harold Hitz Burton (Harvard; United States Senator), and Robert Jackson (Jackson actually didn’t even graduate college, which was not a requirement necessarily to practice law and still isn’t in some states; U.S. Attorney General) had diverse backgrounds. But these backgrounds have been aggressively weeded out of the justice system.

Why? The vice president went to Hastings and served as California’s attorney general and a senator. If she was still a senator today, could she be nominated to the Supreme Court? Unlikely, and yet what a more interesting court it could be.