Characteristics of Those Selected to Sit on the Court: An Overview
Implications of the Career Paths
A recent children's book about Justice O'Connor
concludes with a set of suggestions “if you want to be a Supreme Court
justice.” While other observers might add
or delete specific suggestions, the list underlines an important
reality: because of the workings of the selection process, certain
kinds of people are more likely to reach the Supreme Court than others.
The Legal Profession.
The Constitution does not require that Supreme Court
justices be attorneys. In practice, however, this restriction has been
absolute. Most of those involved in the selection
process assume that only a person with legal training can serve
effectively on the Court. If a president nominated a non-lawyer to the
Court, this assumption—and the large number of lawyers in the
Senate—probably would prevent confirmation.
Thus the willingness and ability to obtain a law degree
constitute the first and least flexible requirement for recruitment to
the Court. Most of the justices who served during the first century of
the Court's history had followed what was then the standard practice,
apprenticing under a practicing attorney. In several instances, the
practicing attorney was a leading member of the bar.
James Byrnes (chosen in 1941) was the last justice to study law through
apprenticeship; all his successors have taken what is now the
conventional route of law school training. A high proportion of
justices have graduated from the more prestigious schools. Of the nine
justices sitting in 2000, seven received their law degrees from
Harvard, Yale, or Stanford.
If legal education is a necessary first step in the
paths to the Court, almost equally important as a last step is
attaining a high position in government or the legal profession.
Obscure private practitioners or state trial judges might be superbly
qualified for the Court, but their qualifications would be questioned
because of their lowly positions. A high position in government or the
legal profession also makes a person more visible to the president and
to others involved in the nomination process.
At the time they were selected, the thirty-three
justices appointed since 1937 held positions of four types. Ten
justices served in the federal executive branch, seven in the Justice
Department. The other three justices served as chair of the Securities
and Exchange Commission (Douglas), secretary of the Treasury (Vinson),
and secretary of labor (Goldberg).
Sixteen of the justices appointed in this period were
appellate judges at the time of selection. Fourteen of them served on
the federal courts of appeals; the other two (Brennan and O'Connor)
served on state courts. Five of the fourteen federal judges (Rutledge,
Burger, Scalia, Thomas, and Ginsburg) came from the District of
Columbia circuit, which is particularly visible to the president and to
other officials in Washington.
Of the other seven justices appointed since 1937, four
held high elective office; three were senators (Black, Byrnes, and
and the fourth was governor of California (Warren). The other three
held positions outside government. Each had attained extraordinary
success and respect—as a legal scholar (Frankfurter), a Washington
lawyer (Fortas), and a leader of the legal profession (Powell).
Frankfurter and Fortas had also been informal presidential advisers.
The Steps Between.
The people who have become Supreme Court justices took
a variety of routes from legal education to the high positions that
made them credible candidates for the Court. Frankfurter, Fortas, and
Powell illustrate one simple route: entry into legal practice or
academia, followed by a gradual rise to high standing in the legal
profession. Some justices took a similar route through public office.
Earl Warren held a series of appointive and elective offices, leading
to his California governorship. Clarence Thomas held a series of
nonelected positions in government, culminating in positions as chair
of the federal Equal Employment Opportunity Commission and then as
judge on a federal court of appeals.
Since 1975, the most common route to the Court has been
through private practice or law teaching, often combined with some time
in government, before appointment to a federal court of appeals.
Antonin Scalia, Stephen Breyer, and Ruth Bader Ginsburg were law
professors. John Paul Stevens and Anthony Kennedy went directly from
private practice to a court of appeals. During their careers, all five
had held government positions or participated informally in the
The path that Sandra Day O'Connor took was unusual. She
spent time in private practice and government legal positions, with
some career interruptions for family reasons, before becoming an
Arizona state senator and majority leader of the senate. O'Connor left
the legislature for a trial judgeship. Her promotion to the state court
of appeals through a gubernatorial appointment put her in a position to
be considered for the Supreme Court.
O'Connor's career underlines the multiplicity of paths
to the Court. Justices have brought to the Court a broad range of
career experiences. What they have shared is their credential as
lawyers and their success in reaching the higher levels of the legal
profession or government that make them candidates for nomination to
Implications of the Career Paths
The paths to the Supreme Court help to explain some
significant characteristics of the justices. They also underline the
role of chance in determining who becomes a justice.
Young people are not appointed to the Supreme Court.
Most of the justices selected in the twentieth century were in their
fifties when they joined the Court; of the remainder, most were over
the age of sixty. William Douglas was the youngest appointee, at age
forty; only three other appointees—Potter Stewart, Byron White, and
Clarence Thomas—were under forty-five.
In one sense, this pattern is surprising. We might
expect presidents to select relatively young candidates in order to
maximize the length of time “their” justices would serve. The main
reason they do not do so is the time required to achieve the high
positions that most justices hold when they are selected and to attain
the eminence that makes one a serious candidate for selection.
Within this constraint, most recent presidents have
sought to select justices who are relatively young. Thomas was
forty-three when selected; the other four Reagan and Bush appointees
were all aged fifty or fifty-one. This pattern reflects strong
presidential interest in the Court's future direction. In this respect
Clinton's selection of sixty-year-old Ruth Bader Ginsburg—the oldest
appointee in more than twenty years—stands out.
Class, Race, and Gender.
The Supreme Court's membership has been quite
unrepresentative of the general population in terms of social class;
most justices grew up in families that were relatively well off. One
study found that one-third of the justices were from the upper class
and one-quarter were from the upper middle class. Only one-quarter were
from the lower middle class or below.
Since the 1930s, an unusually high percentage of
appointees to the Court have had lower-status backgrounds; this is
especially true of Democrats. Still, the recent justices as a group
grew up in better than average circumstances. The 2000 Court included
one justice from the upper class (John Paul Stevens), four from the
upper middle class, three from the middle class, and one (Clarence
Thomas) whose family was impoverished.
The predominance of higher-status backgrounds can be
explained by the career paths that most justices take. First and most
important, a justice must obtain a legal education. To do so is easiest
for individuals of high status, because of the cost of legal training
and the education that necessarily precedes it. Second, individuals of
high status have a variety of advantages in their posteducational
careers. Those who can afford to attend elite law schools, for
instance, have the easiest time obtaining positions in successful law
The partial deviation from this pattern since the 1930s
reflects the increasing availability of legal education. In addition,
the increase in size of the legal profession, the judiciary, and the
federal government has made high positions in these sectors more
accessible to individuals with lower-status backgrounds who previously
might have been excluded. If these explanations have some validity,
then we should expect that the proportion of justices with lower-status
backgrounds will remain relatively large and may increase in the future.
Until 1967 all the justices were white men. This
pattern is not difficult to understand. Women and members of racial
minority groups had extreme difficulty pursuing a legal education
because of legal and other restrictions. As a result, the number of
potential justices from these groups who passed the first barrier to
selection was quite small. Moreover, prejudice against women and
members of racial minorities limited their ability to advance in the
legal profession and in politics. As a result, very few individuals who
were not white men could achieve the high positions that people
generally must obtain to be considered for nomination to the Court.
Since 1967, two women (O'Connor and Ginsburg) and two
African Americans (Marshall and Thomas) have won appointments to the
Court. These appointments reflect changes in society that made it at
least somewhat less difficult for people other than white men to
achieve high positions. They also reflect the growing willingness of
presidents to consider women and members of racial minority groups as
prospective nominees. Still, because of the various advantages they
enjoy, white men are likely to enjoy disproportionate representation on
the Court for some time.
If the Court has been composed primarily of white men
with higher-status backgrounds, what has been the effect on its
policies? It seems likely that the legal claims of racial minority
groups and of
women would have been taken seriously at an earlier time if members of
these groups had sat on the Court, because these justices would have
influenced their colleagues' perceptions of discrimination. Of course,
it is impossible to do more than speculate about this possibility.
Political and social attitudes differ somewhat between
people of higher and lower socioeconomic status, so justices' class
origins might affect the Court's decisions. But the justices typically
are people who have achieved high status themselves even if their
origins were humble. The sympathies of people who have “climbed” upward
from a low socioeconomic level may differ little from those of people
who started out with social and economic advantages. Notably, the
justices with humble backgrounds have included solid conservatives such
as Warren Burger and Clarence Thomas as well as liberals such as Earl
Warren and Thurgood Marshall. Some commentators argue that the Court's
decisions generally reflect the values and interests of people who are
well off. If so, this may result from the status that the justices achieve in their own lives more than from their origins.
Prior Judicial Service.
Recent presidents have preferred to nominate lower
court judges to the Supreme Court because these candidates' judicial
records provide information about their policy views. As a result, the
current Supreme Court is unusual in having eight justices who served on
lower courts (all but William Rehnquist). But historically a majority
of the justices had judicial experience before reaching the Court. Many
commentators think that such service is desirable, even a prerequisite
to superior work on the Supreme Court. On a different level, some
conservatives have argued that a lack of lower court service encourages
Yet a comparison of justices with and without lower
court experience indicates that the two groups do not behave very
differently. To take one example, the leaders of the activist Warren
Court were Earl Warren, with no lower court experience, and former
state judge William Brennan. Their strongest opponents were John
Marshall Harlan, who came to the Court from a federal court of appeals,
and Felix Frankfurter, who came from Harvard Law School. And all four
of these justices have been viewed as outstanding.
This apparent lack of difference is easy to explain. Of
the twenty justices appointed since 1937 who had lower court
justice with the most experience had served for thirteen years; ten
justices had been lower court judges for five years or less.
Undoubtedly even a short period on a lower court shapes a justice's
perspective, but a stint of three or five years—or even of thirteen
years—is not likely to have as much impact on a person's thinking and
approach to judicial policy issues as the much longer period of
education and professional development that preceded it.
Partisan Political Activity.
One characteristic shared by most current justices,
like their predecessors, is a degree of involvement in partisan
politics. Antonin Scalia, for instance, held several positions in the
Nixon and Ford administrations. Anthony Kennedy drafted a state ballot
proposition for California governor Ronald Reagan. William Rehnquist
was active in the Arizona Republican Party. Clarence Thomas worked with
John Danforth when Danforth was the Missouri attorney general and a
U.S. senator, and Thomas later served in the Reagan and Bush
This pattern reflects the ways that justices are
chosen. Even if nominations to the Court are not used as political
rewards, presidents look more favorably on those who have contributed
to their party's success. Partisan activity is also a way to come to
the attention of presidents, their staff members, and others who
influence nomination decisions. Perhaps more important, it enables
people to win the high offices and appointive positions that make them
credible candidates for the Court. To take the most important current
example, lawyers who avoid any involvement in politics are unlikely to
win federal judgeships.
Historically, many justices were career politicians who
achieved high elective office. Of the current justices, only O'Connor
comes close to fitting that pattern. She became majority leader of the
Arizona Senate, though she left the legislature after only six years to
run for (and win) a trial court judgeship. In filling two Court
vacancies in his first term, Bill Clinton seriously considered three
people who had won high elective office. But Clinton ultimately
followed the example of Gerald Ford, Reagan, and Bush in choosing lower
court judges who had never run for office.
Changes in Career Paths.
Even in the period since 1937, there have been changes
in paths to the Supreme Court and in the characteristics of people who
become justices. The numerical dominance of
people from privileged backgrounds and of white men has declined, a
decline reflecting social and political changes in the United States.
That trend is unlikely to be reversed.
As noted already, justices' career patterns have also
changed. Among the twelve justices appointed since 1969, only one
(O'Connor) ever held elective office, only one (Rehnquist) came to the
Court directly from the executive branch, and all but two (Rehnquist
and Powell) were appellate judges when they received their Court
appointments. In a sense, there is less politics and more law in the
backgrounds of justices than there used to be. This change may be a
transitory phenomenon, the result of a series of specific appointment
decisions. But it might represent a long-term shift. If the backgrounds
of justices are becoming more legal and less political, this represents a noteworthy change in the ways that people reach the Supreme Court.
The Role of Chance.
A person does not become a Supreme Court justice
through an inevitable process. Rather, advancement from membership in
the bar to a seat on the Court is a result of luck as much as anything
else. This luck comes in two stages. First, good fortune is often
necessary to achieve the high positions in government or law that make
individuals possible candidates for the Court; it is not necessarily
the “fittest” who become cabinet members or federal appellate judges.
Second, once they achieve such positions, whether candidates are
seriously considered for the Court and actually win an appointment
depends largely on the existence of several favorable circumstances.
For one thing, a potential justice gains enormously by
belonging to a particular political party at the appropriate time.
Every appointment to the Court between 1969 and 1992 was made by a
Republican president. As a result, potential justices who were liberal
Democrats had to watch their chances slip away. Further, someone whose
friend or associate achieves a powerful position becomes a far stronger
candidate for a seat on the Court. David Souter was fortunate that
someone who described Souter as “my closest friend” (Warren Rudman)
became a U.S. senator and that a person who knew and admired him (John
Sununu) became the president's chief of staff.
More generally, everyone appointed to the Court has
benefited from a favorable series of circumstances. Eisenhower's
general became aware of William Brennan because Brennan gave a
conference address in place of a colleague on the New Jersey Supreme
Court who was ill. John Paul Stevens has reported that his pro bono volunteer services for a client led to favorable publicity that later helped him win a judicial appointment.
This does not mean that the Court's direction, as
shaped by presidential appointments, is random. No matter which
individuals they choose, Democratic presidents generally nominate
people with liberal views and Republicans tend to select conservatives.
But it does mean that specific individuals achieve membership on the
Court in large part through good fortune. “You have to be lucky,” said
Sandra Day O'Connor about her appointment, a statement that reflects realism as well as modesty.
Lawrence Baum, Characteristics of Those Selected to Sit on the Court: An Overview, in The Supreme Court, 7th edition (2001), available in CQ Electronic Library,
CQ Supreme Court Collection,
http://library.cqpress.com/scc/tsupct-0007067762 (last visited April
13, 2005). Document ID: tsupct-0007067762.
Document ID: tsupct-0007067762
Document URL: http://library.cqpress.com/scc/tsupct-0007067762