Elena Kagan and the case for an elitist Supreme Court

The Supreme Court was designed by the Founders to be elitist.

Larry Downing/Reuters
Kagan was nominated for appointment to the Supreme Court on May 10, 2010, by President Obama. She was the first female dean of Harvard Law School, and the first woman to serve as the top Supreme Court lawyer. On Aug. 6, she was confirmed as the new Supreme Court Justice. The 50-year-old Kagan, who will be the third woman on the current court, is not expected to change the ideological balance of power on the closely divided panel, which for years has been dominated by a 5-4 conservative majority.

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.

Ms. Kagan, so the argument goes, is a member of a small, well-educated elite; and as a product of the best schools, she is unrepresentative of the vast majority of the American people.

Arguments such as this one surface with some regularity in American politics, and it’s most often heard as a cry from the right.

Elena Kagan: What question would you like to ask her?

However, today’s conservatives would do well to refresh their memories and take a few cues from such luminaries of American conservative thought as

Alexander Hamilton or John Adams. Indeed, criticism of Kagan’s elitism sounds more like the complaints of the Anti-Federalist opponents of the Constitution than they do its Federalist defenders.

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.”

If government were not to be populated by citizens drawn from the ranks of “the wise, the learned, and those eminent for their talents or great virtues,” who would be fit to serve? The most famous, or perhaps infamous, invocation of this Anti-Federalist idea in modern American politics occurred when Richard Nixon nominated Judge G. Harrold Carswell of Tallahassee, Fla., to the Supreme Court in 1970.

In response to attacks on Carswell’s qualifications, US Sen. Roman Hruska of Nebraska rose to reassert the Anti-Federalist vision of politics. “Even if he were mediocre,’’ he asserted, “there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.’’

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.

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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