Saul Cornell: Elena Kagan and the Case for an Elitist Supreme Court





[Saul Cornell, PhD, holds the Paul and Diane Guenther chair in American history at Fordham University. He is the author of “The Other Founders: Anti-Federalism & the Dissenting Tradition in America, 1788-1828” and “A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America.”]

The announcement of Solicitor General Elena Kagan’s nomination to fill the US Supreme Court seat being vacated by Justice John Paul Stevens has prompted a familiar complaint.

Among the fears raised by the Anti-Federalists more than 200 years ago, two recently revived during the debate over the Kagan nomination stand out:

If Kagan were approved, the new federal government would be dominated by the well educated, and the federal courts would be populated by judges of a legalistic caste of mind out of touch with the lives of ordinary Americans.

These arguments were taken to their absurd conclusion in the New York State constitutional ratification convention in 1788.

As one Federalist wrote about his Anti-Federalist opponents, “the gentleman, sensible of the weakness of this reasoning, is obliged to fortify it by having recourse to the phantom aristocracy.”...

The Federalist Founders, it is important to recall, were drawn from a very small elite. They were champions of the ideal of natural aristocracy. Indeed, the very best among them were emblems of this ideal.

As it turns out, Princeton produced the largest share of college degrees among the members of the Constitutional Convention....

So, the fact that future Supreme Courts may have a Princeton majority should hardly be a cause for alarm. Then, as now, the Ivy League contained members of both the natural aristocracy of talent and the artificial aristocracy of privilege. Kagan is clearly representative of the former, not the latter....



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Ronald Dale Karr - 5/28/2010

I'm guessing that this is written tongue in cheek and that Cornell isn't being entirely serious.

But if he is, does he really believe that Ivy League graduates are a "natural" aristocracy? That God or Nature somehow summons the students of Harvard, Yale, and Princeton, anointing their inborn superiority? Can the admission offices at these institutions really be that prescient as to identify greatness in precocious 17-year olds? Or are those institutions really capable of creating an aristocracy in just four years of education? Just how does this work?

Seems hard to believe in a nation of 300 million that the natural aristocracy is confined to a few thousand graduates of a handful of colonial colleges. Something like 75% of college graduates come from public institutions. Aren't there any talented lawyers from that source?

As many others have pointed out, the Supreme Court is unbalanced in many ways--its increasingly bizarre decisions have been attributed to its geographic inbalance (coastal states only!) and the absence of practicing politicians, trial judges (OK, there's now one), and now, Protestants (in a country with a Protestant majority).

Like the anti-Federalists, I think it's dangerous that our Supreme Court and President (only two have attended public institutions) are drawn from a tiny body of graduates of elite colleges.

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