Amy Coney Barrett’s nomination to the Supreme Court is significant because of her academic pedigree. She is a graduate of and former professor at Notre Dame. Notre Dame, of course, is a fine law school. It is ranked in the top 25 nationally and is held in high esteem by most every Catholic family in America. As we have seen during this week’s confirmation hearing she is whip smart, poised, and learned in the law. But she didn’t go to Harvard or Yale, lately the gatekeepers to a position on the Supreme Court.
Of the current justices, every single one is a graduate of either Harvard or Yale. Among federal law clerks, a significant plurality comes from the top 10 or so law schools, with the most prestigious clerkships having an overrepresentation of Harvard and Yale graduates. This kind of pedigree ends up being a pathway to positions in the Department of Justice, government, elite law firms, and on the bench.
The Managerial Ruling Class
America does not have a landed elite, nor a warrior aristocracy, but rather the ruling class consists of carefully selected managers. The managers do not own the means of production, but rather control access to them.
As Michael Anton has observed,
our current overlords rest their claim to rule on a twofold and mutually reinforcing assertion of superiority. The first is expertise: their purportedly superior understanding of the complexities of modern life, grounded in their purportedly superior intelligence and elite education. These claims dovetail neatly with their moral claim, because to twenty-first-century America’s elite, virtue is less a matter of what one does or does not do than what one believes and does not believe. To be smart and educated is to hold the correct opinions; to hold the correct opinions is evidence of intelligence and education.
The Ivy League figures prominently in cultivating and controlling access to the managerial ruling class. As Charles Murray and Richard Herrnstein noted in The Bell Curve, while intelligence used to be distributed more evenly between other colleges and the Ivy League, admissions standards changed in the 1950s. These schools moved away from their role as finishing schools for the hereditary WASP ruling class and became extremely efficient at channeling the brightest Americans their way. At the time of The Bell Curve’s publication, half of those with SAT scores in the top 1 percent went to only 12 universities, most of which are part of the Ivy League. In short, intellectual talent increasingly is marked by elite academic credentials.
This would not be so alarming if these schools simply refined the highest academic talents to the highest levels. But in parallel with their increasingly efficient sorting for intelligence, the Ivy League has rejected not merely legacy admissions, but the legacy of Western Civilization, which gave birth to these institutions. At the same time, the parallel emphasis on diversity and social consciousness has crowded out white men and made religious and conservative Americans feel unwelcome.
A Hostile Elite’s Training Ground
The insanity that one sees now in corporate America and among the political Left was “beta tested” on campus. The Ivy League, after all, infamously kicked ROTC units off campus to protest the Vietnam War and later maintained this policy to protest “don’t ask, don’t tell,” the position of the military on homosexuality during the Clinton years. Campus is also where increasingly strident identity politics and free speech restrictions became acceptable. Harvard’s president, Larry Summers, had to resign in 2006 after observing that fewer women may enter the sciences because of personal preference and aptitude. Such “real talk” is now verboten in our top universities.
The graduates of the Ivy League thus emerge with a highly regarded credential, a stellar network, but also with many common assumptions, habits, and expectations. Generally, this point of view consists of the aesthetic and political views of managerial class neoliberalism. The viewpoint is familiar from the pages of the Washington Post, law school faculty lounges, corporate human resource departments, and in the downstream media that takes their cues from the ruling class.
Namely, it is pro-China, anti-Russia, pro-abortion, anti-gun, anti-Christian, believes America is racist but can get better because “diversity is our strength,” is OK with Silicon Valley monopolies and globalism, while skeptical of the less-hip industries of the country’s interior, and, of course, it is stridently anti-Trump. These views combine to support having the graduates of Ivy League schools at the top of the heap. In other words, a Harvard or Yale degree is not merely a marker of smarts, but of a point of view and ruling class membership and loyalty.
The ideological indoctrination is most pronounced in the law schools. Starting in the 1920s, legal realism emerged on the scene. It taught that the old, naïvely formalistic views of law and legal education were a fiction. Legal realists argued that the stated reasons in legal opinions, with a heavy emphasis on precedent and fine linguistic distinctions, were largely a mask for economic and other unstated factors.
Jerome Frank argued, after his own treatment with psychoanalysis, that the judge’s psychological state predominated as a decision-making factor. This view is often paraphrased as “decisions resting on what the judge had for breakfast that morning.” Oliver Wendell Holmes argued that law is simply “predicting what judges will do.”
In the 1960s, this background cynicism about the law led to a view of legal education not as one grounded in the internal logic of the law itself, but of law as a tool for social change in a fundamentally unjust society. In this era, we find the proliferation of decisions that are grounded in “penumbras” and “emanations” promoting women’s rights, bussing, and other popular liberal causes.
In the Casey decision, Justice Anthony Kennedy famously wrote, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This philosophical rumination is many things, but it’s not law. Kennedy, of course, was a graduate of Harvard Law School.
Ironically, Christopher Columbus Langdell was the most significant force in the early rise of Harvard Law School. He taught law as a closed system, where analogic reasoning and the case method predominated. He also instituted the standard first year curriculum of contracts, property, torts, criminal law, and civil procedure. As a typically American self-made man not born of a prominent family, he adopted “blind grading” to address apparent favoritism among elite families.
All of his influence, including the ideal of a meritocracy, slowly has been whittled away first by legal realism and later by the demands of diversity, supercharged by the activist view of law beginning in the 1960s. More recent legal innovations, including same sex marriage and interference with executive power over immigration, are buttressed by the steady flow of left-leaning scholarship from the Ivy League.
The Value of An Outsider
Amy Coney Barret did not have the “benefit” of the Ivy League. She is a graduate of Rhodes College in Tennessee, and went on to attend Notre Dame Law on a full scholarship. She later undertook prestigious clerkships, including one with the late Justice Antonin Scalia.
Notre Dame, unlike the Ivy League, is not as steeped in the academic fads of the ruling class. For starters, unlike the rest of them, any flirtations with political liberalism are somewhat bound by the Catholic tradition. Among other things, this tradition recognizes the sanctity of life and marriage.
Notre Dame also has several prominent academics who recognize the natural law; this tradition, stretching back to Aristotle and Thomas Aquinas, is an antidote to the faddish trend of modern judicial activism. Legal realism provides no strong basis for any judge, Right or Left, to limit his expression of will and naked preference. After all, it claims that’s all any judge ever does, whether he acknowledges it or not.
For lawyers, the broader implications of the Catholic teaching of God as logos encourages a careful study of language as being an embodiment of the truth, not merely a tool for power or obfuscation. Catholics are also particularly sensitive to the importance of religious liberty, something less popular than ever among our elite. As historian Arthur Schlesinger said, anti-Catholicism is the “deepest held bias in the history of the American people” and the “anti-Semitism of intellectuals.”
Notre Dame’s promotional literature states, “As an eminent law school at the heart of a great Catholic university, our view of legal education is informed and inspired by our religious tradition. It’s a tradition that spans the globe, embraces people of all backgrounds, and illustrates the possibilities of dialogue between reason and faith.” By contrast, Harvard Law School claims, “HLS students are not satisfied sitting in their dorm rooms and highlighting casebooks. They are looking to transform the world, one client—or one country—at a time.” Harvard wants its people in charge and without boundaries. In this, Harvard is succeeding.
The conservative movement, while it has objected to judicial activism and done yeoman’s work in cultivating originalist lawyers and judges through the Federalist Society, has done little to undermine the mystique of the Ivy League. It seems, as evidenced by Chief Justice John Roberts and Justice Neil Gorsuch, that even supposedly conservative graduates of the Ivy League are seduced and corrupted by the Ivy League’s intense and increasingly monotone political culture.
As with “woke capitalism,” the transformation of these important cultural institutions largely has been neglected by conservatives as being something outside the bounds of politics. As a consequence, they are given the same residual respect they earned in the 19th and 20th centuries, even though the basis of that respect—their former glory as citadels of learning and custodians of high culture—has been replaced by anti-civilizational subversion and decadence.
Part of “draining the swamp” must be rooted in understanding its nature. It is chiefly a metaphor for a self-serving and hostile managerial overclass. The chief entry point to leadership in that class is Ivy League credentials. And the chief goal of the American Right should not be to whine about this state of affairs, beg for scraps, or otherwise to acknowledge this class and its institutions’ legitimacy. Instead, the Right must deny their legitimacy and champion alternative institutions, the Hillsdales and Notre Dames of the world, as well as their graduates.
There is more to being a judge than mere intellect. There is also judgment, humility, patriotism, ethics, and high commitment to the limited role of the judiciary. It is a conceit to believe that all of the greatest intellects are found only in a handful of institutions, which, because of their increasingly strident politics and aggressive regime of affirmative action, exclude those with the wrong background or wrong opinions.
As a justice, we should not be surprised that Amy Coney Barrett can teach us not only about football, as she joked, but, like Justice Scalia, she may teach us a humble respect for the written words of the Constitution.