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Letters to the Editor – Weekly Issue of July 12, 2010

Readers write in about Elena Kagan and diversity on the Supreme Court.

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Courting democracy

In "Should the Court Look More Like America?" (June 28), Mike Sacks's balanced, informative cover story about the makeup of the Supreme Court asks: "But are identity politics antithetical to an independent judiciary?" A more important question might be whether identity politics in the selection of Supreme Court justices is constitutional.

In his dissent in Plessy v. Ferguson in 1898, Justice John Marshall Harlan famously noted that due process under the law requires that governments be "colorblind" in their treatment of citizens. It took Brown v. Board of Education in 1954 and the Civil Rights Act of 1964 to make Justice Harlan's admonition the law of the land.

Affirmative action came in conflict with this concept of colorblindness and due process, and has since troubled the court. In the more recent New Haven firefighters case, disparity of results not necessarily caused by discrimination raised the same conflict. Justice Antonin Scalia, in a concurring opinion, noted that sooner or later the tension between disparate impact and due process would have to be resolved.

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