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Harvard beats Yale — a different score at the Supreme Court

Emil Photo Again Edited 61b7dabb61239

Most people in higher ed this week will at least be partially focused on their “Big Game,” the football rivalry in their respective area that tends to turn most highly educated men and women into rabid, unrecognizable fans.

For the good of the school, right?

Since I went to Harvard, I admit to a mild interest in the Harvard/Yale game. But only mild.

I call the Ivies, America’s TWCUs, or the “tragically white colleges and universities.” I’m prouder to have been part of a generation that helped introduce the idea that “diversity” should be a bit more than just a word that rhymes with “university.”

When Harvard plays Yale, I think of how an influx of qualified minority students helped change a broader “score” and how the student body now looks a little bit more like America.

But my enduring memory of “The Game,” as it’s called, has nothing to do with football. During a road trip to Yale, with no real interest in the game, I recall the enormous power I wielded over a much older Yale alumnus so desperate to pay a high price for my ticket and the privilege of sitting in the Harvard student section.

I have a little school loyalty.

But only a little.

Still, have you seen this score?

It’s Harvard 5, Yale 3, Columbia 1.

It’s the score in the Supreme Court based on the law schools the justices attended.

After reading Dahlia Lithwick’s piece in the New Republic, I’m wondering if there’s really anything to be proud about that score.

I mean is that really the way we want the court? All Ivy elitists? Shouldn’t the court include some bright mind from some other law school, a person who might be less theoretical, more practical? I’m not talking about “Judge Judy,” merely someone who has a different perspective than the Ivy League elitists, who knows something other than privilege.

When it comes to the diversity of the court, Lithwick writes:

”Perhaps the strongest and scariest signal that this Court has no use for real life came late last spring, when Sotomayor broke from the Court’s current operating procedure during an important case about affirmative action in Michigan. Sotomayor, a onetime prosecutor and a graduate of Princeton and Yale Law School, is as thoroughbred as they come. But when the majority opinion invalidating the program devolved into a highly abstracted discussion about voter preferences, the first Latina justice attempted to puncture the force field of hyper-legalism. From the bench, she read aloud from a passionate dissent that described in deeply personal terms “the slights, the snickers” that remind her that racism remains very alive. Roberts, in response, called her out for elevating “policy preferences” over rigorous doctrine.”

“Thurgood Marshall used to talk about race, too. But his colleagues listened. Sandra Day O’Connor famously explained in an essay that his stories about the Jim Crow South changed how she and several of her colleagues approached the law. “Justice Marshall imparted not only his legal acumen, but also his life experiences,” O’Connor wrote, “constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.” They don’t talk about “life experience” at the Roberts Court, much less “moral truth.” Personal narrative of any sort has been downgraded to sloppy sentimentality, rather than something that might enrich the justices’ thinking.”

Sadly, we live in a society where minorities, even brilliant ones can be bullied by the majority. And on the court, it doesn’t take much. The solution? Let’s get some more real people on that court. You know, for diversity’s sake.

Lithwick: “In the coming months and years, this group of Ivy-trained Washington insiders will have to decide whether Texas voters who don’t have driver’s licenses and are required to take three buses across town to pay $30 for a voter ID have effectively been disenfranchised. They will determine whether women who need to travel 300 miles to procure an abortion (women who may lack cars, or paid time off, or money to spend on hotels) face an “undue burden.” But some of the same justices who will bar empathy from those considerations forget that they do evince empathy when they side with those beleaguered “sidewalk counselors,” or multimillionaire campaign donors, or the owner of a mega-chain of craft stores who believes his religious freedoms have been impinged. All of us import our values and experiences into our decision-making. The double-whammy at the current Court is that the justices are no longer allowed to acknowledge it, and that the pool of those with whom they unavoidably identify is so dangerously small and privileged.”

“When the next court vacancy occurs, there will be lists of brilliant, Yale- and Harvard-trained jurists to choose from. But there will also be many accomplished lawyers toiling in elected office and legal-aid clinics and state-school faculties. Progressives need to identify those prospects and to push them forward. The alternative is ceding the court to ever-more dazzling minds, while seeing less of our own realities in its jurisprudence.”

Diversity advocates know who their friends are in the court. Who wants to keep affirmative action? Who wants to end it?

Now is the time for some judicial affirmative action.

The 2016 elections are coming and it’s not out of line to ask a potential presidential candidate about his or her short list for the Supreme Court.

In this day and age, the Supreme Court of the United States is one of the important appointments a president can make.

And we should know, it doesn’t have to be one from Harvard, Yale or even a Columbia.

The law isn’t some theoretical legal puzzle. We need jurists who are connected to real life, with the wisdom, the courage and humility to decide on the rules of our lives.

Emil Guillermo writes on issues of race, culture and politics for the Asian American Legal Defense and Education Fund ( Like him at ; twitter@emilamok

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