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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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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.


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