Ivy-Covered Court

By Richard Cohen
Tuesday, November 15, 2005; A21

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 he said 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 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 the possession of 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 make up a majority of 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 such as 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.