Mr. Justice Scalia and the Moritz College of Law (another reposting, this time with a heretical update)

I argued on August 18, 2009, in a post called “’Out Here’ in D.C.,” that Easterners are inclined to dismiss Midwesterners as provincials and that Glenn Fellows, though they have every reason to be professionally ambitious, forget or ignore this at their peril.

There could be no more dramatic example than that provided in Spring 2009 by Antonin Scalia, Associate Justice of the United States Supreme Court. As Adam Liptak reported in The New York Times on May 11, 2009, Justice Scalia, speaking at American University in Washington, D.C., explained to an audience of law students that their odds of landing a clerkship with a Supreme Court justice were slim or none because these posts are reserved for students from America’s most prestigious law schools. According to Liptak, the “hard truth” is that “Over the last six years, the justices have hired about 220 law clerks. Almost half went to Harvard or Yale. Chicago, Stanford, Virginia and Columbia collectively accounted for 50 others." Liptak reports that “Justice Scalia said he could think of one sort-of exception to his rule favoring the elite schools.” To wit:

“One of my former clerks whom I am the most proud of now sits on the Sixth Circuit Court of Appeals" in Cincinnati, the justice said, referring to Jeffrey S. Sutton. But Justice Scalia explained that Mr. Sutton had been hired by Justice Lewis F. Powell Jr. after his retirement and then helped out in Justice Scalia's chambers. "I wouldn't have hired Jeff Sutton," Justice Scalia said. "For God's sake, he went to Ohio State! And he's one of the very best clerks I ever had."

As one can readily imagine, Justice Scalia’s remarks inspired a kerfuffle in Buckeyeland. The Columbus Dispatch reported that Scalia was “not a big fan of OSU law graduates,” and the Ohio State Bar Association objected to the “insult” and issued a sharp, if not entirely persuasive, rejoinder, arguing that “Intellect, skill and fundamental integrity are not measured by the school someone attends. Birthright, money, LSAT scores and magazine rankings of law schools are not the standards by which this profession judges itself.”

My reading of this story is that Justice Scalia was conveying brute facts, which are not in dispute, and that his endorsement of Judge Sutton indicates that he understands that the prejudice in favor of elite law schools is ultimately not rational. True, he seems disinclined to buck the system, but I think it’s pretty clear that his “For God’s sake” remark was intended ironically. They learn that sort of thing at the elite schools, such as Harvard, where Scalia earned his law degree. They also learn not to harbor too many illusions about the quality of instruction at the nation's most prestigious institutions.

September 14, 2009, update. Further evidence that Harvard law graduates tend to be lovers of irony comes from an AP story that Lawrence Hurley cites in his Supreme Court blog, Washington Briefs. Elitist joke alert: Asked if too many of the justices came from elite law schools, CJ Roberts says no -- some went to Yale (AP).

May 13, 2010, update: I find it just fascinating that as our society has in some ways become more and more committed to diversity and level playing fields, it has in some other ways become remarkably complacent in the face of increased stratification. Yesterday's Washington Post explores some facets of this phenomenon here.

June 24, 2010, heretical update: I keep re-posting the Scalia story in hopes that it will provoke some conversation about how OSU alumni could help generate a more complex and and nuanced public image of The Ohio State University. Perhaps I have been too subtle. What I have been trying to say is that Northeast Corridor Buckeyes should heed the example of President Gordon Gee by celebrating OSU's many centers of excellence, rather than being fixated on NCAA football, the origin of the bedrock stereotype that is working--on the Supreme Court and elsewhere--to our disadvantage. There, I've said it.