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Is ‘meritocracy’ most important?—Benjamin H. Barton on how a narrow set of American elites dominates the Supreme Court

Podcast & Video

This episode of Hub Dialogues features host Sean Speer in conversation with University of Tennessee law professor Benjamin Barton about his thought-provoking new book, The Credentialed Court: Inside the Cloistered, Elite World of American Justice. They discuss how the path to sitting on the Supreme Court is one open to only an increasingly homogenous elite.

You can listen to this episode of Hub Dialogues on Acast, Amazon, Apple, Google, Spotify, Stitcher, or YouTube. A transcript of the episode is available below.

Transcripts of our podcast episodes are not fully edited for grammar or spelling.

SEAN SPEER: Welcome to Hub Dialogues. I’m your host, Sean Speer editor-at-large at The Hub. I’m honoured to be joined today by Benjamin Barton, who’s a University of Tennessee law professor and the author of the fascinating new book, The Credentialed Court: Inside the Cloistered Elite World of American Justice. The book, which is set to be released in the coming weeks, provides a timely and important analysis of the growing convergence in the backgrounds and experiences of U.S. Supreme Court justices and its consequences at a time when so much of the popular discourse is about their differences. Congratulations on the book, Professor Barton. And thanks for joining us at Hub Dialogues.

BENJAMIN H. BARTON: Oh, no. Thank you for having me. I’m thrilled.

SEAN SPEER: Your description of today’s Supreme Court is as “radically similar”, which would probably surprise a lot of readers. What do you mean by that?

BENJAMIN H. BARTON: Yeah, so it’s super funny. People think that because there’s a conservative-liberal split, there’s like a real radical difference between these folks. And in fact, from the day these guys and gals entered college, there are very, very few Americans who have had more similar experiences than these nine people. The bulk of them went to Ivy League colleges or Stanford for undergrad. All of them except for one went to Harvard or Yale for law school. Six of them clerked on the Supreme Court, which is the hardest job to get out of law school. Five of them spent significant time teaching in American law schools. They all have this hyper elite, meritocratic—depending on how you define merit—experience where they’ve gone through a series of exceedingly narrow hoops.

I mean, one thing I want to make clear is, it’s not easy to get these jobs. That being said, they have all jumped through the same hoops. They follow the same path to this point in their lives where they find themselves on the court.

SEAN SPEER: When do you think the court started to converge in terms of backgrounds and experiences? And what were the factors behind this trend?

BENJAMIN H. BARTON: I love this question. Part of it is the rise in salience in the Supreme Court. So basically, in the 1950s and the 1940s it was just kind of a backwater. There wasn’t much going on and so presidents had a lot more leeway to appoint people to the court. In fact, I studied the backgrounds of all 115 Supreme Court justices. There are some people that are just head-scratchers, where it’s literally like, how did this person take that? Like, literally, there’s nine of these people, and this is the guy who made it up in the 1970s? And then certainly, starting with Nixon, it got to be a lot, you know—Roe v. Wade really raised the salience of it; the revolution of the 1960s; the Warren Court in the U.S. raised the salience of it. So people really started to pay attention. All of a sudden, you had these battles over confirmation.

One of the things that Presidents tried to do was to kind of grease the skids. One way to do that was to take background off the plate, like don’t appoint anybody who’s got a controversial background. So don’t appoint a former politician; don’t appoint a lawyer who’s done a bunch of controversial stuff—just kind of vanilla appointees, people who have been on the Court of Appeals already. Then insofar as you care that when they’re appointed, they’re gonna do exactly what you want them to do. You think having them on the Court of Appeals helps because you’ve seen their record. So people feel more comfortable with this uniformity of background.

One of the things I’ve put in the book is the great irony of it: Donald Trump, whether you like him or not, it’s a fact he was elected on the back of attacking elites like that. If that wasn’t the number one thing that he pointed to it was in the top five, and yet, when he was president, he just appointed the most elite possible guys, literally, you know, basically indistinguishable from the people that Obama had appointed. So at least in that one area, he went the opposite direction.

SEAN SPEER: American Enterprise scholar Yuval Levin recently observed on a different podcast a broader sociological trend along these lines. He said, “There is now an elite in American life in a way that there hasn’t always been. In some ways, the left-right debate has been recast as an up-down debate. But of course, the right has its own elites, and they went to the same schools, and they’re in some ways in the same bubbles so that the left-right is really among elites. That’s what our politics is ultimately about.”

What do you think about that formulation? Do you think what’s happening on the courts is part of a broader sociological trend towards hyper-credentialization in American life?

BENJAMIN H. BARTON: Absolutely. And again, your mileage will vary. I’ve presented this book all over the country and actually in other countries, including Canada, and you’ll get a bunch of people who are like, “This sounds like meritocracy in action. Also, really? You’re going to complain that we have the smartest, best-credentialed people who are most qualified? (And again, it depends on what you mean by qualified for the court.) What could be wrong with that?”

Well, the problem is that your life experiences affect how you approach your job and how you go forward with it. There’s been a graduate of Harvard Law School on the Supreme Court from the beginning. There’s always been at least one. I’m not saying there should be none. I’m just saying there’s no reason why all nine of them should have the same background experiences. But yeah, no, I think it’s a very boiled-down, intense version of the debate over meritocracy.

One of the things that is super interesting when you do the research of all 115 Supreme Court justices is it’s always been a meritocracy. It just depends on what you mean by merit. They used to appoint people who had significant—really some of them just incredible—life experiences before they got on the court. One of the tests—and it’s Sandy Levinson’s who is a law professor at Texas—his test on this is whether you would have earned a biography before you got on the court. As he puts it: hit by a bus on the way to the court. So you know, Thurgood Marshall is a classic example. But John Marshall is another example of this, let alone John Jay on the very first Supreme Court. I mean, these people had done so much before they got on the court. They were famous, well-known, well-established, folks before they got on there. On the current court, I mean, it’s just harder, you know. These folks have done a lot. They’ve accomplished a lot. But they haven’t had these broad life experiences that people used to bring to the court.

SEAN SPEER: Let me take you up on that. Professor Barton. What do you think are the biggest consequences of this increase of increasingly shared backgrounds and experiences in the court? Maybe to put it differently: how do you think a more diverse set of backgrounds and experiences might change the cases the court takes on and the decisions that it makes?

BENJAMIN H. BARTON: Believe me, a lot of folks are like, “Wait, hold on, you’re telling me if there were different backgrounds we would have an answer on abortion? If we have different backgrounds, would things be held differently?” I just want to be clear, this book is a nonpartisan book, meaning I don’t think that if you’re a right-wing person, it’s not going to thrill you; if you’re a left-wing person, it is not going to thrill you. You’re not going to get decisions that more closely associated with your political desires. But I think what you would get, and what this Court is sorely lacking, is what Aristotle called “practical wisdom.”

Aristotle said practical wisdom only comes from life experience. In a super humorous quote, he describes practical wisdom as the opposite of mere cleverness. And it’s my opinion that this Court is packed with mere cleverness on the left and on the right.

There’s a similar group of justices who had a really, really, really hard time getting along, and it’s the group of justices that were in power at the end of the 1940s and into the 1950s. There’s a great book about this called Scorpions, that describes how miserably these people got along. They were almost all appointed by the same president, FDR. They were almost all Democrats; they basically agreed politically, and yet they couldn’t get along. They had a whole bunch of fractured decisions. The reason why is that it was the first court that had a majority of law professors on it. That’s my opinion on the reason why. You do not want to turn this court into an academic debate. You want people drawing on their event life experience, or saying, you know, “I’ve got better things to do than write a sub dissent of paragraph three, subsection D.” You need people who are going to work together on this.

One of the ironies is roughly a third of the people who’ve served as the Supreme Court justices were former politicians, and some of them really decorated politicians, including a former president of the United States, candidates for president, candidates for vice president. We basically haven’t had a high-profile politician since the 1950s, since the War. And part of the reason why is people already think it’s a political court. “If we had politicians, wouldn’t that be worse?” I’m like, how could it get worse? Worse? How’s it working out for you? You haven’t appointed a politician since Sandra Day O’Connor, does it seem like we’re getting along better? Does the court seem less political? In fact, if you had politicians on the court, some of these folks might help you know, bind them together? These are glue people and these are also people who have been out and amongst regular people in the U.S.

One of the things that’s hard, but it’s a bless their hearts situation, as we would say in Tennessee, is that these justices just haven’t had much interaction with regular people. You just can’t. When you go to Harvard undergrad, and then Harvard Law School, and then a clerk on the Supreme Court, and they work in the White House, you just don’t run across too many ordinary people. That alone has to really colour how you see all of these things.

SEAN SPEER: If listeners are persuaded that the deficit of practical wisdom is a problem to be solved, how can this trend be reversed? What should be done to try to bring greater intellectual and experiential diversity to the U.S. courts?

BENJAMIN H. BARTON: Part of the hope is just sunshine being the best disinfectant. So that’s part of the idea. And I’ll note also that there are other people noticing this, including Justice Scalia in the Obergefell dissent, one of his most famous dissents, that’s the gay marriage decision in the U.S. He starts the dissent by describing the backgrounds of the Supreme Court justices and saying this is not a representative court to be making this decision. In less strident terms, Justices on the left have noticed that as well, Kagan and Sotomayor have both made similar comments, and Biden, you know, we’ll have to wait and see on the Supreme Court, but he’s tried. You can see his appointments at the lower court level have a little more diversity of experience, and certainly more diversity of race and gender. I should also note that the court is more diverse in terms of race and gender than it’s ever been by a mile. All you have to do is look at a picture, it’s obvious that that is a big change. I’m not against that salutary change. But again, I don’t think that should come at the cost of having a broader life diversity. I mean, the irony is that Sotomayor and Kagan and Amy Coney Barrett have had experiences so similar to the existing male justices.

SEAN SPEER: That’s an important point that diversity comes in different shapes and forms. And as we think about the trade-offs in trying to achieve the goal of representativeness and representation, we need to be cognizant of the role for experience and background.

An underlying idea in your answers in today’s discussion, but in the book as well, is the backdrop of the current moment of populism, and its expressions of distrust in mainstream institutions, including the courts. So do you think a better representation of this idea of practical wisdom could help to mitigate some of the trust issues that Americans are expressing poll after poll with respect to the Supreme Court?

BENJAMIN H. BARTON: I think the answer to that is yes. But again, that’s an empirical question to be measured on a going-forward basis. But no, I really do think that. It’s not that I think that you should just pick names out of a phone book. That’s not what I’m saying at all. But what I am saying is that you should consider what these folks have done before, and then they get a mix of it. The first 70 years of the court, they were really, really, really careful about geographic diversity, for example. They didn’t mean like—so Gorsuch is nominally from Colorado, but he moved to Washington, DC when he was nine. And then the next time he basically came back to Colorado was as a 10th circuit judge where he was there for, I don’t know, five, six years, and then came back to the Supreme Court. He spent more time not living in Colorado than living in Colorado, whereas you look at a guy like Byron White.

Byron is a crazy story. So he grew up in a little town in Colorado, and he went to the University of Colorado on a merit scholarship. He finished first in his high school. Everybody in Colorado went free to the University of Colorado who finished first in high school. He joined the football team, didn’t start as a freshman, came in second in the Heisman Trophy, lead the country in rushing, then got a Rhodes scholarship and ran in the NFL, and went to Yale Law School all at the same time. He did all three of these things over a period of time. He had to quit the NFL and Yale Law School because then he went into the Navy, and he served in naval intelligence with JFK. Then he got out. At this point now he’s too old to play football and finishes Yale Law School, moves back to Colorado, and just worked as a lawyer for, I don’t know, 12 or 13 years. And then he gets appointed back to the court by JFK.

This is an example of the way Thurgood Marshall was. This is the guy who was more famous at 20 than when he was appointed to the Supreme Court. But he was in actual Colorado, you know what I mean? And Justice Thomas grew up in Georgia. But again, he never lived in Georgia after he graduated high school. It’s a little strong to call him a Georgian when in his 50s he gets appointed to the Court and he’s lived the bulk of his years and in Washington, DC. But yeah, basically, it would just be a more recognizable institution, it would be less Olympian in the way that it would present itself.

SEAN SPEER: You mentioned in an earlier answer, and it’s sort of implicit throughout the book, that we’ve come to have quite a narrow conception of merit and the meritocracy. Do you want to just unpack some of your thinking on this question, and the need, both with respect to the court, but perhaps more generally, to reconceptualize how we think of merit and meritocracy? And also how we account for certain skills or experiences that are presently not captured in the world of credentialization?

BENJAMIN H. BARTON: Absolutely. I love that question. If it’s going to be a qualification for the Supreme Court that you have to go to an Ivy League undergraduate institution or Stanford, that means that the race to get on the Supreme Court starts when you’re 14, in ninth-grade algebra. Like you just can’t get a C in that class or you’re not qualified to be on the Supreme Court.

The good news about our version of meritocracy is, it does measure something. I mean, like in statistics, we’ll call it internally valid. It actually measures something. You can tell because the same people keep doing well on it each time after time after time. But you get this really narrow skillset, and a really particular type A overachiever type person, or the type of people who can keep trucking along on this path. It’s very, very narrow to a certain set. It’s kind of a lonely path. If you think of the people that you knew in high school, who would be qualified to go on to the next step, and then the next step, and the next step—these are folks who have spent a lot of time in the library. There’s something likable about that; people do like tests, and they do like hoops, and they do like things that measure it.

There’s something worrisome about a society where there are so many off-ramps and so few on-ramps when you do this broader version of merit. So for example, there are lots of folks who are senators or members of the House of Representatives, or have significant governmental duties, who are the types of folks who used to get on the court, who don’t come from these backgrounds.

Joe Biden is a perfect example of this. Joe Biden was a mediocre student, by his own admission, had mediocre student years, then to Delaware and then went to Syracuse Law School. He was like “I’m lucky they didn’t toss me out.” And yet he’s made it to where he’s made it. That’s a significant achievement. And it’s because of the things that he did later in life. It’s a similar experience for Thurgood Marshall. Lots of these folks have proven themselves, gotten their bona fides, based on their later experience, things that they later achieved, and you want to keep the doors open. You want a version of meritocracy where it’s broad enough that you’re encompassing a whole lifetime of achievement and not just a narrow series of hoops that have led you into the hardest job to get in America.

SEAN SPEER: It seems to me a big part of that also, Professor Barton, is creating models for young people to see different pathways, or even to see themselves and their own experiences represented on the court. To what extent does justice Amy Coney Barrett’s background coming from the University of Notre Dame represent an alternative model — a signal to aspiring law students and possible future jurists that there is a different path and that they don’t need to follow this hyper tracked system that you’re describing?

BENJAMIN H. BARTON: Yeah, so on the one hand, she’s a pretty likable example. She grew up in upstate New Orleans, so that’s pretty likable. And she went to a super extra awesome Tennessee College, but still a non-elite college, Rhodes College. In fact, it’s humorous, there are two different justices that went to Rhodes College and there’s only one justice that went to Duke or Vanderbilt or other schools in the south. So I consider Rhodes to be the Harvard of the South as of now. She did go onto Notre Dame, which is not Harvard or Yale. That set her aside from her colleagues. That being said, she finished first in her class at Notre Dame, clerked for Scalia, and was one of Scalia’s favourite clerks. And then from there, she went on back into academia after following a pretty, pretty fancy, legal career. So outside of the entry to Notre Dame Law School, she’s really pretty similar to the other ones. In fact, she’s got a really similar career and life to Kagan. So it’s interesting.

SEAN SPEER: I’d be remiss if I didn’t ask you, given that, in addition to this most recent book, you’re someone who’s spent a lot of time studying the kind of ecosystem in and around the Supreme Court, we’re going to see a number of contentious cases taken up in 2022, quite likely, including, of course, questions around abortion. How do Americans maybe lower the temperature around the Supreme Court? Or is that not a plausible aspiration at this stage?

BENJAMIN H. BARTON: I think where we’re at now that seems implausible. There are a lot of factors completely outside of the Court’s control. Now, in my opinion, it’s somewhat within the court’s control that it got so out of hand, that the Supreme Court did become a much higher salience institution and did really drive—not only on abortion, but this is one of those examples. That just drove people who oppose abortion completely around the bend so that there was a significant portion of the electorate—I mean, obviously not a majority, but maybe a majority within the Republican Party, or at least a plurality there—who were like, “This is the thing I care about. That’s it, period, I’m done dealing with anything else.” There’s no better example than Donald Trump. I mean, he literally said with his outside voice to people at rallies, “You might not like me, but you have to vote for me Supreme Court justices, period.” That was his pitch. If you look at the exit polls, it actually was pretty successful. So some of it is internal to the court, but a chunk of it is just the broader roil in the U.S. right now. It’s just really hard to imagine that that’s going to cool down. At least in the next year’s terms of the Supreme Court, they control their own docket. I mean, they could take fewer of these cases, and that would cause some tremors, but it wouldn’t be the way it’s going to be when these cases come down, for sure.

SEAN SPEER: That just brings me to my final question: notwithstanding the intensity of the polarization in and around the Supreme Court, what’s the reaction you’re getting from people when you outline your thesis of radical similarity which, presumably for many, is such a challenge to the way that they’ve come to think about the Court and its place in American society?

BENJAMIN H. BARTON: Yeah, so it’s super funny. The biggest group of folks to who I’ve presented this work to are other law professors and other lawyers who are super hierarchical and elitist, just to be frank. And they frequently push back pretty regularly. I also do this weird thing where if I get it, I’ve been invited to speak to several Rotary Clubs in Knoxville and in Nashville, and so I just go and tell the story. But it is amazing. Regular folks are like “Huh, I hadn’t thought about that, that that makes a lot of sense.” I mean, they’re a lot warmer and closer to this concept for sure.

SEAN SPEER: Well, again, the book is The Credentialed Court: Inside the Cloistered Elite World of American Justice. Professor Benjamin Barton, thank you for joining us today to talk a bit about the book. Congratulations on its forthcoming release, and good luck persuading your colleagues that they’re missing this important piece of the puzzle when it comes to understanding the Court, its conception, and its place in American society.

BENJAMIN H. BARTON: Beautiful. Thank you so much. It was a great conversation. I really enjoyed it.