Elitism on the Supreme Court



What’s wrong with our third branch

Harvard. Harvard. Harvard. Yale. Harvard and Columbia. Harvard. Harvard. Yale. Yale. Harvard. Harvard.      

Do you sense a trend here? Every single Supreme Court justice confirmed since the appointment of Justice Scalia in 1986 has attended law school at either Harvard or Yale. This fact is extremely problematic in of itself, yet it is also a symptom of a much more serious contagion, elitism, which infects our nation’s highest federal court and renders it fundamentally unfit to serve the American people.

Of course, elitism is not a new phenomenon on the Supreme Court or in American politics generally. Is is even necessary, in a certain sense. Historically, only five justices in American history have ever served on the Court without receiving a formal university legal education. Today, a law degree is essentially required for all potential nominees. Additionally, it has become the norm that nominees possess multiple decades of experience as attorneys and often as federal judges too. These basic criteria guarantee that our justices are among the best and brightest lawyers in the country, individuals who possess a comprehensive understanding of the American Constitution and our nation’s intricate legal codes.

Still, the strain of elitism which penetrates the Supreme Court today is uniquely rooted in higher education. Surely, the Harvard and Yale law schools are phenomenal educational institutions, but the suggestion that our best lawyers have attended only Harvard or Yale defies common sense. Yet, that is what the modern nomination process seems to imply. Simply put, Brett Kavanaugh (Yale) is not a profoundly more brilliant legal mind than Thomas Hardiman (Georgetown), Raymond Kethledge (Michigan), or Amy Coney Barrett (Notre Dame), the three “finalists” to replace Justice Kennedy this year.

Nevertheless, legal commentators from all over the political spectrum claimed that Kavanaugh’s Yale education was supposedly a “plus” factor for Kavanaugh against the other potential nominees. This basic assumption which pervades our legal system brands potential nominees with less “elite” backgrounds from being considered as seriously as lawyers who attended Harvard or Yale law schools. Furthermore, potential Supreme Court nominees are mostly drawn from a small pool of individuals who worked as Supreme Court clerks during their prestigious young legal careers. These clerkships are (unsurprisingly) also heavily weighted toward graduates of the most “elite” law schools.

Additionally, geographical variation among the various justices on the Court today is virtually nonexistent. As Justice Scalia wrote in his Obergefell v. Hodges dissent in 2015, the Court “is hardly a cross-section of America.” The Gorsuch and Kavanaugh appointments have done little to alter this reality. Assuming Kavanaugh is ultimately confirmed, seven of the nine justices will hail from America’s coasts, whereas the great American heartland (“the vast expanse in-between,” per Scalia) is represented by only two justices.

Of course, the Founders did not intend the Supreme Court to be a representative body in the same sense that Congress is one. Scalia recognized this point in this very same dissent, explaining that “the strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges.” However, when judges act effectively as legislators and not as judges (contrary to the Founders’ intentions), it calls into question why we give up so much authority to nine unelected lawyers who have each attended Harvard or Yale.

There seems to be little indication that these educational and geographic biases inherent in the Supreme Court nomination process will be curtailed anytime in the near future. This time around, three relative non-elites from the vast expanse in-between were overlooked in favor of another urban northeasterner who graduated from Yale Law School. Hopefully, future presidents will recognize that they ought not limit themselves to the Harvard-Yale status quo and instead think to look elsewhere when appointing justices to our nation’s highest court.

Brennan Buhr is a junior from Albany, NY, studying political science, theology, and history. He makes somewhere in between 85% to 90% of his free throws on an average day. You can contact him at bbuhr@nd.edu.

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