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Today marks the first Monday in October and the start of a new term for the Supreme Court of the United States. While most SCOTUS watchers occupy their time trying to figure out how the voting will break down on hot-button issues, not much attention is paid to a unifying characteristic of the Supreme Court – the intellectual background of the Justices.

Ideally, the Supreme Court is supposed to be above partisan politics and be the repository for the greatest legal minds in the country. Anyone who is intellectually honest will admit that a “great legal mind” can be cast anywhere along the spectrum of “liberal” and “conservative” – hence the problems with “litmus tests” for potential justices. However, is the appointment process succeeding in placing the best and brightest on the Court? Without changing any of the individual, subjective qualifications of the Justices, it can be safely argued that something is amiss in the process.

The current Supreme Court is composed of four Justices who are graduates of Harvard Law School (Breyer, Kennedy, Roberts, and Scalia), four Justices who received their law degree from Yale (Alito, Kagan, Sotomayor, Thomas ) and Justice Ginsburg who attend Harvard but finished her degree at Columbia. The odds are against the nine greatest legal minds in the country attending, ostensibly, two law schools. I suppose that the counter-argument is that Harvard and Yale recruit only the best and, likewise, the brightest are drawn to those institutions. This argument is safely refuted by that most merciless of merit-based American institutions – the National Football League.

As I watched the Bears’ and Giants’ starting players introduce themselves, and their alma maters, on last night’s Sunday Night Football broadcast, I was struck by the fact that there were starters from schools that are not renowned for attracting great players (Abilene Christian, Southern Illinois, Tennessee Tech, Texas A&M – Kingsville , Tulane, and Vanderbilt) and even one player, Israel Idonije, who played his football in Manitoba, Canada. I then decided to look at last year’s All-Pro team, and discovered Chris Johnson from East Carolina, Leonard Weaver from Carson-Newman, Jahri Evans from Bloomsburg, Darren Sharer from William & Mary, and DeMarcus Ware from Troy – all college programs which cannot be said to attract the crème de la crème.

A quick survey of a listing of Justices of the Supreme Court by law schools shows that diversity in the alma maters of Justices appeared the rule until the recent past. Former Chief Justice Warren Burger, having attended the William Mitchell College of Law, probably wouldn’t even get a sniff at being on the Court today and (his immediate predecessor) Chief Justice Earl Warren’s degree from UC-Berkley might not pass muster either. All in all, 23 law schools not named Harvard and Yale have produced men and women worthy to be made Justices on the Court. But that was then, this is now.

Jefferson though the exemption of Justices from election to be “quite dangerous enough.” While the merits of appointed versus elected judges is a perennial debate, it seems safe to say that the search committee for Supreme Court Justices would be well served to look beyond the city limits of Cambridge, Massachusetts and New Haven, Connecticut.

Whether the Harvard/Yale domination on the Court is the manifestation of the workings of a good-old-boy (and girl) network, or a de facto educational litmus test, it represents a dangerous intellectual incest which is unbecoming of the principles of intellectual freedom and diversity upon which America was founded.

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