Elena Kagan and the case for an elitist Supreme Court
The Supreme Court was designed by the Founders to be elitist.
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As it turns out, Princeton produced the largest share of college degrees among the members of the Constitutional Convention.Skip to next paragraph
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.
In “The Federalist Papers,” James Madison noted that one of the many virtues of the Federal system was that it would act as a filter, winnowing and refining the pool of candidates for federal office. The Founders were not antigovernment libertarians or populist democrats. They were chastened civic republicans who recognized that one of the most basic functions of government was to civilize and restrain the excesses of democracy.
The role of the Supreme Court in American history remains essentially countermajoritarian.
As Justice Robert Jackson noted more than half a century ago: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”
To be sure, the high court is not immune to politics or the evolving traditions of American society. It is not, however, intended to be an exact mirror of the people.
Among all institutions in American society, the Supreme Court is deliberately designed to be elitist in nature. The Founders recognized this fact, and the debate over future nominations to the Supreme Court ought to as well.
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.”
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