Progressives vs. Opportunity

One of the surprises from my recent study on the affinity bias of Ivy+ graduates is that progressives are among the worst offenders.

My study found that when Ivy+ graduates are in leadership roles they disproportionately choose Ivy+ graduates for important positions. That is, non-Ivy+ grads find talented people from a vast array of schools, but Ivy+ grads mostly choose those who went to the slender set of schools that they themselves attended.

Importantly, I found that this is not merely an “alma mater” effect. It’s not that Princeton grads simply hire Princeton grads or Yale grads only hire Yale grads. It’s that those who went to one of the 12 Ivy+ schools demonstrate a bias for others who went to one of those 12 Ivy+ schools…and thereby neglect high-performing, high-potential individuals who went to other schools.

Since progressives often deride institutional and systemic bias and often laud expanded opportunity, I assumed that progressives who graduated from Ivy+ schools would be less likely to show favoritism for the products of these elite schools. I thought progressives—knowing that these schools give big advantages to the wealthiest students—would shy away from further advantaging those schools’ graduates. I thought progressives—knowing that talent can be found far and wide and knowing that life circumstances can lead talented people to go to many different schools—would hire from a constellation of educational institutions.

Wow, was I wrong.

SCOTUS Clerkships

In the last section of my paper, I find this phenomenon in the selection of White House Fellows (WHF). When the WHF Commission has more Ivy+ grads, it chooses more Ivy+ grads as fellows. This is especially pronounced during the administrations of Democratic presidents.

Even more startling is how evident this is among justices of the Supreme Court of the United States (SCOTUS). Ivy+ justices hire many more Ivy+ clerks than non-Ivy+ justices. This is especially pronounced among the most progressive justices. For example, Justice Breyer, Justice Ginsburg, and Justice Souter (about whom I previously wrote) overwhelmingly selected clerks who went to Ivy+ schools for undergraduate and law school.

But Justice Elena Kagan was my biggest surprise and, frankly, my biggest disappointment. I’m not exactly a fan of Justice Kagan’s jurisprudence, but I’ve appreciated her temperament, attempts at bridge-building, and collegiality. I guess for those reasons, I just assumed that she would be egalitarian- and opportunity-minded when it came to hiring clerks.

My, oh my. On the contrary.

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Numbers Don’t Lie

Two quick pieces of background info. First, Kagan is a double Ivy+ grad (Princeton, Harvard Law). Second, I collected data on the undergraduate and law-school education of all SCOTUS clerks from 1980 to 2024, so the following data include all of Justice Kagan’s clerks from her 2010 confirmation through 2024.

Let’s begin by looking at the law-school education of Kagan’s clerks. No justice in the last 45 years hired a smaller percentage of clerks from public law schools than Kagan—only 5%. Justices Rehnquist, Burger, and Powell hired 7 to 8 times as many public-law grads. They found individuals talented enough to be clerks among the graduates of the public law schools of Arizona, Georgia, Illinois, Maine, Minnesota, Missouri, North Carolina, Temple, Texas, Utah, Virginia, and Washington.

And no justice in the last 45 years hired a higher percentage of clerks from Ivy+ law schools than Justice Kagan—92%.

You might ask if this is just a function of Kagan’s having served as dean of Harvard Law prior to joining the Court. In other words, you could think that since she was part of the Harvard leadership team she must overwhelmingly choose grads of Harvard College and Harvard law. She must feel a special loyalty to those institutions, trust those professors, etc. So for Kagan, we might reason, this isn’t Ivy+ affinity bias; it’s just Harvard loyalty.

But the data refute that. More Kagan clerks went to college at Yale than Harvard. And the percentage of her clerks from Harvard Law is similar to that of Souter, Scalia, and Roberts. So Kagan isn’t merely a Harvard devotee; she has the same affinity bias as other Ivy+ grads. Hers is just more pronounced than other justices’ … even other progressive justices’.

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I find the undergraduate data even more frustrating. Choices made by and about 17-year-olds shape Justice Kagan’s clerk decisions years and years later.

Only 10% of her clerks went to a public college (bear in mind that about 2/3 of today’s students in 4-year colleges go to a public). Only Souter (9%) selected fewer public-college grads among justices of the last 45 years. Current justices Thomas and Gorsuch select far more public grads, so it can be done.

Fully 70% of Kagan’s clerks went to an Ivy+ college. With Ginsburg, she’s tied for second behind Souter. Again, this need not be the case. Current justices Gorsuch and Barrett chose less than half that percentage. Former Chief Justice Rehnquist—a brilliant legal mind and tough cookie—found talent at far more schools.

Opportunities Denied

Let’s put this in human terms.

Imagine there’s a young woman graduating from high school. She wants to be an attorney someday. She’s brilliant, diligent, and conscientious. She graduated first in her class. Her family doesn’t have much money. She gets a full ride to her state’s flagship university and is accepted into its prestigious honors college. She excels there, again graduating first in her class—the very top of thousands of graduates. She still doesn’t have much money, and her parents aren’t doing well. She wants to stay close to home. She gets a full ride to her state’s best public law school. Again, she excels. She graduates first in her class. All the honors.

Her professors believe she’s as fine a student as they’ve ever had. Especially given her circumstances. They tell her to reach for the professional stars. So she tells her school’s dean that she’d like to be a SCOTUS law clerk. The dean winces.

The student, caught off guard, asks, “What’s wrong?”

The dean replies hesitantly, “SCOTUS justices are nearly all Ivy+ grads nowadays. And Ivy+ justices overwhelmingly hire Ivy+ grads as clerks.”

The student replies, “But they make exceptions, right?”

“I’m sorry. No justice has ever hired a clerk from our program.”

“But I was the top graduate of my undergraduate university and this law school,” she replies.

The dean clears her throat. “SCOTUS justices have never hired a clerk who graduated from your undergraduate university either.”

The student thinks of her favorite justice and asks sheepishly, “But what about Justice Kagan?”

“Unfortunately,” says the dean, “during her first 15 years on the Court, she hired clerks from only four public colleges.1 And she hired clerks from only two public law schools.”2

The student looks at her shoes. “So, in those 15 years, how many of her clerks went to a public college and a public law school?”

“I’m sorry. Out of about 60 clerks…just one.”3

Leaders’ Duty to the American Dream

The American Dream is only possible if those in positions of power are willing to provide opportunities to all talented, hardworking, virtuous people.

America needs Ivy+ graduates, especially progressive Ivy+ graduates, to remember that.

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