Most Americans do not spend much time thinking about the Supreme Court. It is in the news occasionally but for many of us it is only a little more interesting than the war in Afghanistan, but significantly less interesting than the latest Twitter attack launched by the unhinged White House occupant. This is why the greatest scandal in all of American government has gone largely unnoticed; because it has taken place at the Supreme Court. This scandal may not be sexy, but it has teeth. We ignore it at our own peril.
When Brett Kavanaugh was confirmed and installed on the court it was reasonable for the nation to be focused on the pathetic and hysterical hissy-fit he threw on the biggest public stage he will ever stand on. Kavanaugh, snarling and red-faced, was so whiny and self-pitying that he made Richard Nixon’s most infamous concession speech look noble by comparison. “You won’t make me quit! No matter how hard you try!” Bret cried. Literally. We could not help but ask the obvious questions about the flagrant display of white male privilege and entitlement.
The questions were irresistible: What if a black man or a woman had gotten on live TV and showed their ass like that with twenty-million people watching? My God, they would have been roundly rebuked and the nomination would have been pulled! They wouldn’t even have taken a vote! Look what they did to Lani Guinier! And of course we were right.
But in the midst of Bret’s tantrum and Lindsay Graham’s Broadway musical grandstanding, we got distracted from this outrageous fact: Bret Kavanaugh and Neil Gorsuch went to the same prep-school in suburban Washington, D.C. Big deal, right? Who cares if these guys went to the same high school? It seems like an innocuous fact at first glance. Standing alone it seems almost trivial compared to the other serious issues raised by Dr. Christine Blasey-Ford. But consider what that fact actually reflects about our country and how power and influence are shared and distributed. There are approximately 37,000 high schools in the United States of America. And the last TWO Supreme Court Justices appointed to the bench came from ONE school? That means two of nine Justices have a nearly indistinguishable background. (And you are right- I am thoroughly discounting the difference between going to Harvard or Yale.) Even with a modicum of meritocracy that is a statistical impossibility. It simply should never happen. That statistic would be outrageous even if you threw out all of the public schools from consideration and only chose candidates from private schools. You would still have taken two guys from one school out of almost 11,000 schools. That is clearer proof of toxic levels of entrenched corruption than just about anything else you can find in Washington, D.C.- even in this administration. This statistic means that well over 99% of law students have virtually no shot at being installed on the High Court.
If nominations to the Supreme Court are supposed to be reserved for only the very best minds in the country it is a near mathematical impossibility that any one high school would ever produce two such students- much less two in a row- that would top the list of all candidates. Is there any surprise that Brett acted like such a prick when being called to account for his conduct by people from such unworthy places like Minneapolis or Rhode Island? How dare they? But rather than having his nomination met with any outrage or even the mildest push-back, news of Kavanaugh sharing a high school alma-mater with Gorsuch was treated as a cute little human interest factoid. We all have been conditioned to accept the idea that the greatest opportunity in one of the nation’s most important professions would be held aside and reserved for only some people- namely well-heeled, Catholic-raised, white guys who went to Georgetown Prep.
We did not even blink at this fact because we all know that true qualifications, capability, character and merit have little or nothing to do with who gets the best opportunities these days. If America ever functioned that way, it was just temporary. Meritocracy has made the occasional cameo appearance to satisfy the broader audience but elitist exclusivity is the factory setting. We were all so outraged by the college admission scandal earlier this year but paid no attention to how the insular culture of privilege that created that scandal has already poisoned the United States Supreme Court and it will likely touch every one of us at some point.
There are idealists among us who still believe that the Supreme Court can once again stand as an independent judicial body. But it cannot ever reach that purpose again until it no longer reflects the enduring power of white male privilege. And it will have to undergo structural change before that reality can be in the rear-view mirror. All options must be on the table because what we have now is not sustainable. So as we approach the 2020 election, I urge Democrats to lean in hard on the fact that the Courts- including the SCOTUS- have to be reformed to reflect all of the people and not just the ones that the Framers of the Constitution could have accepted. Beyond the private country club reality of the Supreme Court, we are also staring down the barrel of a federal judiciary that has been thoroughly molested by Mitch McConnell who would appoint boys from Georgetown Prep to every court in America if he could find enough of them in every district. Knowing Mitch, he is probably hard at work on that job right now. We ignore this at our own risk.