Who was the first SCOTUS justice to take the modern embodiment of the Bar Exam?
None! (At least, I don’t think so.)
The very first version of the U.S. “bar exam” started in Delaware in 1763. Unlike the modern, standardized, written exam, the earliest versions of the bar exam were simply oral assessments of skill that usually took place after an apprenticeship with an established lawyer.
During the 1800s, the norm was to have the oral exam administered under the jurisdiction of the local court in the town or county where you lived. There were no specific guidelines. One quaint example of this process is the bar admission of Jonathan Birch, who was examined by Abraham Lincoln.
Birch and a group of his buddies decided to become lawyers in Illinois. They hit the books and immersed themselves in the study of law though none ever got a chance to officially practice or gain an apprenticeship. Once they felt ready to obtain their license they traveled out to Chicago where the bar was administered for their district of Bloomington. However, what they didn’t realize was that the Bloomington district had a new rule which required a minimum of 2 years apprenticeship experience in order to certify. So they all – sadly – returned home with nothing to show. Lincoln somehow heard of Birch’s interest and agreed to administer the examination in his own district of Springfield, Illinois, where an apprenticeship was not required. Lincoln’s questions consisted of what books Birch liked to read and two exchanged some stories. That’s it. Lincoln then wrote up a certificate to the court recommending that Birch be admitted. If only it were that easy today.
The modern trend of written examinations didn’t start until the mid-1800s. The first state to employ a written version of the bar exam was Massachusetts, in 1855. In the 1920s, the American Bar Association finally began requiring formal exams to be administered by the state bar examining committees. The early versions of these “formal” bar exams consisted only of essays until the Multistate Bar Examination (MBE) was developed by the National Conference of Bar Examiners in 1972. The MBE was created as a six-hour, six-topic, multiple-choice test. The idea behind the multiple-choice format was to increase efficiency of grading and help ensure as much fairness as possible. In 1988, the NCBE added the Multistate Essay Exam, which consisted of short fact patterns and require test-takers to apply legal principals to the scenario. Finally, in 1997, the Multistate Performance Test was created. The MPT simulates common types of work assignments that lawyers must accomplish in their day-to-day, such as drafting client memos and briefs. Each of these exam segments is made available to the states, though there is no national requirement to administer them. However, starting in 2011, Missouri and North Dakota became the first states to administer the Uniform Bar Exam (UBE) which consists of all three NCBE exams over the course of two days. Today, the UBE is administered in 38 states plus DC and the Virgin Islands. The UBE consists of 6 essays within the MEE, 2 larger work products for the MPT, and 200 multiple choice questions in the MBE which now cover seven topics: civil procedure, constitutional law, contracts, criminal law and procedure, evidence, real property and torts.
I tried to figure out which was the first SCOTUS justice to take a written bar exam, but it is not clear. I thought that it might be Justice Horace Gray (Clifford appointee, served 1882-1902) because he was from Massachusetts. However, upon further digging I found out that he was admitted to the bar in 1851, which was 4 years before MA started administering written exams.
I also tried to determine if any of our new, young justices would have taken the UBE or a similar embodiment of the exam consisting of the three NCBE segments. None of the justices would have taken the UBE because they would have been admitted well before 2011. Our youngest justice, Amy Coney Barrett, was admitted to the bar in Virginia in 2000.The next youngest, Neil Gorsuch, was admitted to the NY bar in 1992. Although none of the justices took the UBE, it is possible that some of the newer justices took the MBE or even the MEE portions. Maybe Bill will be the first UBE admitted lawyer to sit on the Supreme Court!
Take a look at where our current justices were initially barred back when they were itty, bitty little law school graduates:
John Roberts: DC Bar, 1981
Clarence Thomas: MO Bar, 1974
Stephen Breyer: DC Bar, 1966
Samuel Alito: NJ, 1975
Sonia Sotomayor: NY Bar, 1979
Elena Kagan: NY Bar, 1988
Neil Gorsuch: NY Bar, 1992
Brett Kavanaugh: MD Bar, 1990
Amy Coney Barrett: VA Bar, 2000
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