November 15, 2005
Harvard's Court
By Richard
Cohen
William F. Buckley, a founder of contemporary conservatism, once
said he ``would rather live in a society governed by the first
2,000 names in the Boston phone directory than in one governed
by the 2,000 members of the Harvard faculty.'' Since saying that,
conservatism has gone from a fringe movement to the dominant ideology
of American political life. It now controls two branches of the
federal government and is about to add the third -- the Supreme
Court. Alas for Buckley, Harvard still rules.
With the retirement of Sandra Day O'Connor (Stanford and Stanford
Law), the Supreme Court will have six justices -- including the
new chief, John Roberts -- who have attended either Harvard College
or Harvard Law School. If Yale and Princeton are thrown in for
good measure -- along with Harvard, the favorite schools of the
old East Coast Protestant establishment -- then the figure goes
to eight out of nine, assuming Samuel Alito Jr. is confirmed.
John Paul Stevens -- he of the University of Chicago and Northwestern
School of Law -- will be the last non-Ivy League holdout.
You might think that the lock the Ivy League has on the Supreme
Court is long-standing. Not so. This is a rather new phenomenon
and is a direct result of the movement in these schools to admit
students on the basis of merit -- however that is defined. At
one time, merit was defined as having certain leadership qualities
that matched those of the old WASP elite and were largely designed,
in the words of Harvard's early 20th-century president A. Lawrence
Lowell, to ``prevent a dangerous increase in the proportion of
Jews.'' Harvard lost that battle -- but won the war.
The Lowell quote is from Jerome Karabel's fascinating new book,
``The Chosen.'' It details the efforts made by the Ivies -- in
particular Harvard, Yale and Princeton -- to keep out Jews. The
admissions department with its demands for interviews and references,
questions about your mother's maiden name (now we know why) and
other attempts to filter out the undesirable Hebrews, was originally
introduced to avoid the sort of school Yale was becoming in 1929
when its admissions chairman, Robert Corwin, likened the list
of newly admitted students to ``a recent roll call at the Wailing
Wall.'' Yalies always could frame a quote.
The paradox is that the dismantling of the old boy network and
the introduction of merit has produced a greater concentration
of power in the Ivy League. This is particularly the case in law,
where Ivies are disproportionally represented on the elite law
firms, law school faculties and, most important, the Supreme Court.
Karabel, whose book contains 116 pages of notes, astoundingly
has data in his computer that he did not include in the book.
Among those he fetched out for me is the fact that of the 53 justices
who served on the Supreme Court in the 20th century, only 11 went
to Harvard Law (the current court already has five), four went
to Yale (two on the current court) and four to Columbia (one at
the moment). The rest went all over the place -- including to
no law school at all. For instance, Robert Jackson -- U.S. attorney
general, chief prosecutor at the Nuremberg war crimes trials and
an FDR appointee to the Supreme Court -- went to no college and
attended the Albany School of Law. He will, you can be assured,
be the last to have done so.
With the recent nomination of Alito, much was made of the fact
that if he is confirmed, Roman Catholics will comprise a majority
on the court. What this means no one can quite say since Antonin
Scalia and Anthony Kennedy are both Catholics but hardly see eye
to eye on constitutional matters. The same could be said about
the way the Ivies, particularly Harvard, dominate the court. What
does it mean?
Well, at a minimum, it means that the court's membership is not
as variegated as it once was. Sure, Clarence Thomas (Yale) and
Scalia (Harvard) hardly come from the old WASP establishment,
but in some immeasurable sense they were formed or affected by
Ivy League institutions. Gone, for one thing, are politicians
like Earl Warren (Berkeley) or civil rights lawyers like Thurgood
Marshall (Howard), whose life experiences informed their decisions.
What we now have is an intellectual elite, smart as hell, no doubt,
but a bit short on political or, even, executive experience. It
governs -- once from the left, soon from the right but more and
more from the same place: the banks of the Charles.
©
2005, Washington Post Writers Group
