How public is a US “public university”?

A couple of weeks ago, I read an article that I subsequently had trouble recovering a second time on Google Scholar — despite its usefulness to me on Wikipedia. The article, titled ‘Ideological Voting Applied to the School Desegregation Cases in the Federal Courts of Appeals from the 1960s and 1970s’, is an interesting look at how circuit courts dealt with the questions arising after Brown v. Board of Education outlawed de jure segregation. Whilst the article’s results are mostly — though not all — familiar, it makes an interesting comment that is still remarkably familiar:

“i. Law School Education

There has been a common criticism by conservatives that the federal judiciary is comprised of liberal activists from elite Ivy League law schools. In the Fifth Circuit, justices serving in the 1960s and early 1970s attended several different law schools. Fifteen justices represent the Fifth Circuit... and only three of those judges attended Ivy League schools: John Cooper Godbold, Irving Goldberg, and Elbert Tuttle. Interestingly, these three judges do meet the common conservative argument noted above. All three judges held an impressive liberal voting record (eleven to one) on school desegregation panel”

At the same time, it has been a pertinent observation that since Charles Evans Whittaker in 1957, no jurist who obtained his or her law degree from a public law school has been nominated to the Supreme Court of the United States. [To be precise, the last twenty-six confirmed candidates, and last thirty nominees, all gained their legal education from private law schools]. Given my familiarity with arguments like those of Red Flag and Robert Ovetz, and the shift of US politics to the right since the 1966 midterm elections and the expansion of trade beginning slightly earlier, one should theoretically be unsurprised by the disappearance of public law school educations from SCOTUS. However, it is interesting that another article I have read — ‘Harvard and Yale Ascendant: The Legal Education of the Justices from Holmes to Kagan’ — notes how the Supreme Court has become completely dominated by Harvard and Yale graduates without noting the earlier disappearance of public law school educated jurists from the Court.

In its summary, ‘Ideological Voting Applied to the School Desegregation Cases in the Federal Courts of Appeals from the 1960s and 1970s’ did suggest as possibilities for further research:

“Other research possibilities would be comparing justices [judges] who attended public versus private law schools, or elite law schools versus other law schools (Ivy League schools are not the only elite schools).”

I did the first of these and found, to my surprise, that judges who attended public law schools were, by Pearson correlation coefficient, actually a little more conservative than those who attended private law schools, though the difference is almost certainly insignificant. Moreover, those attending elite law schools (the T14 plus Texas and UCLA) show the same result as for public law schools, while those attending nonelite private law schools (private law schools not belonging to the T14) are no more conservative than judges attending public or elite private law schools.

What may explain this result is that, throughout US history, the “public” sector has often been viewed as a coalition of private organisations rather than actually owned by the public as more modern theories would expect. This is most clearly seen in the debates over the nature of primary elections between 1921 and 1944, in which political parties were frequently viewed as private entities with the right to exclude people on any basis they wished. As Hans Hoppe noted in his Democracy: The God That Failed, this is exactly the opposite of modern democratic theory. This influence upon the “public” sector in the US is entirely consistent with the lack of abnormal liberalism in the voting of those judges educated at public law schools. In fact, even on the Supreme Court those judges educated at public law schools were not by any means uniformly more liberal than contemporaries from private law schools. For instance, three of the conservative “Four Horsemen” of the New Deal era — James Clark McReynolds, William Van Devanter and George Sutherland — were educated at public law schools, as was conservative Chief Justice William Howard Taft.