America's Legal Clerisy
Donald Trump has made his second appointment to the Supreme Court, and boy has he gone over to the establishment. His choice is a DC native straight out of Georgetown Prep and Yale, with strong ties to the administration of George W. Bush, who originally appointed him to the bench. So much for draining the swamp.
But I never believed that part about draining the swamp, and I have to admit that Brett Kavanaugh is not very swampy. He is a standard issue conservative judge and seems to be a smart and capable fellow. The best place to go for a quick look at his record is an overview of four cases he weighed in on as a member of the DC Circuit Court. Two relate to religious liberty and abortion, though the results are somewhat ambiguous. It is not clear how far he will go on either of those issues because, as Kavanaugh put it in one of his rulings, "our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy." This is always the limitation when it comes to judging a nominee from his lower court rulings: what he does while following precedent from higher courts does not tell you what he will do when he is himself a member of that court and no longer beholden to a higher legal authority.
But two others stand out, particularly because they were dissents that challenged the reasoning of his colleagues.
HELLER v. DISTRICT OF COLUMBIA
In a pivotal 2011 Second Amendment case, Kavanaugh wrote a dissenting opinion when the DC Circuit Court upheld a District of Columbia ordinance banning most semi-automatic rifles.
Kavanaugh argued that the Second Amendment included the right to own semi-automatic rifles. Kavanaugh wrote that the Supreme Court has found that handguns—"the vast majority of which today are semi-automatic"—are constitutionally protected. "Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses," he wrote....
WHITE STALLION ENERGY CENTER LLC v. EPA
In this 2014 opinion, Kavanaugh argued that the Environmental Protection Agency must take monetary costs into consideration when deciding whether to regulate emissions from power plants. The appeals court affirmed the emissions standard set by the EPA in 2012 for mercury and other pollutants from coal- and oil-fired electric utility steam generating units.
One of the key issues in the case was whether EPA was required to consider the costs imposed by the rule. The majority of the court agreed with the EPA that it did not have to consider the costs. In his dissent, Kavanaugh wrote that it came as a "surprise" that the EPA did not consider costs.
This last, I suspect, is why Trump chose him. As with Justice Gorsuch, who has vocally opposed judicial deference to the administrative state, Kavanaugh seems inclined to limit the power of the regulatory agencies, or at least to keep that power within a less expansive scope than the "liberal" members of the Court.
Democrats have, of course, issued pro forma denunciations of Kavanaugh. Some are more pro forma than others, such as one press release dismissing Kavanaugh as an "extremist"—except that it was clearly written before the announcement, and someone forgot to include the actual name of the nominee, so it merely denounces the placeholder "XX."
It is the duty of the opposition to oppose, so naturally most Democrats will oppose Kavanaugh simply because he is not on their side of the political debate. That's fine, and they are presumably representing the will of their constituents back home. But unless they can come up with something more than that, they will not be able to convince Republican senators and the few conservative Democrats from "red states" like West Virginia. So I expect Kavanaugh to be confirmed. Religious conservatives are a bit disappointed that Trump passed over Amy Coney Barrett—a devout Catholic, mother of seven, and a guaranteed vote to overturn Roe v. Wade—but they'll get over it.
My standards are different, and I don't expect Kavanaugh to live up to them, but I've gotten used to disappointment. I still expect him to be better than Justice Kennedy, who was the Court's somewhat mercurial swing vote (a role that will now likely pass to John Roberts). I also still expect that we can't rely on the Supreme Court to rescue the cause of liberty all by itself.
The only thing that really bothers me about the Kavanaugh appointment is that he's from Yale. Again.
A look at the educational backgrounds of the current Supreme Court justices shows that they went to law school at Harvard and Yale. All of them. The only semi-exception is Ruth Bader Ginsburg, who went to Harvard before transferring to Columbia University. The only way to differentiate them from each other is by listing which school they attended for their undergraduate degrees, though even this doesn't help much. Sure, there's Clarence Thomas's undergrad degree from College of the Holy Cross. But John Roberts went to Harvard before going to Harvard, and Kavanaugh mirrors that path, having gone to Yale before really mixing it up and going to Yale. Three justices have undergraduate degrees from Princeton, and several others from Stanford.
In short, a shot at one of the top jobs in the federal judiciary seem to be the exclusive perk of attending just two law schools and a small number of elite undergraduate schools. The attitude behind this is summed up in an article noting this pattern back when Elena Kagan was nominated to the Supreme Court, which described the case against Harvard/Yale domination by dragging out an old quote from former Senator Roman Hruska: "There are a lot of mediocre judges and people and lawyers. They're entitled to a little representation, aren't they?" I'm pretty sure this is supposed to be a joke, though it's always hard to tell, but the implication is that anyone not from Harvard and Yale is mediocre, as if there are only two good schools in this country and only a few hundred really talented students.
I don't have any direct interest in any of this. I have no law degree from anywhere, I have no aspirations to political office, and nobody needs to have an inferiority complex about graduating from the University of Chicago. My concern is how this narrows the range of options and range of thinking at the top of our legal system. When a system is composed entirely of elites who all went to the same institutions and all received essentially the same education, they will all tend to think about issues in similar ways. If not for the Federalist Society, they would never encounter a legal perspective from the right. But even the Court's conservatives will be operating within a spectrum of ideas shaped by the few institutions they go through.
The whole things reminds me of the French énarques, graduates of the elite Ecole Nationale d'Administration, the National School of Administration, which populates the French civil service and most of the country's top political offices. This is not a democracy, it's a clerisy, a system of rule by an educated elite. It's a system in which the direction of the country is influenced more by the appointment of professors to an elite institution than by the preferences of voters. That's the lesson for us. The French system is supposed to be a meritocracy, but it actually serves to entrench the power of an unaccountable institution.
Maybe it's true that the top law schools attract the brightest and certainly the most ambitious young people. It's certainly true that it's easy for politicians to use a judicial nominee's degree from one of these institutions as a seal of approval and a way of a deflecting criticism. ("How dare you reject my nominee, he's from Harvard.") But it's also a way of outsourcing all of the nation's legal thinking to the faculty lounges at Harvard and Yale.
It didn't use to be this way. Supreme Court justices used to be drawn from a wide variety of schools—and in the days before higher education cemented itself into a clerisy, many justices were self-educated and had no formal law degree at all. It seems like a healthier, more vibrant, more open-minded way to seek out legal talent and legal ideas.
The Supreme Court is not meant to be a closed guild. Some future president should stop treating it like one and have the courage to name a distinguished nominee from an undistinguished school.