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Elena Kagan: Would she turn Supreme Court into We the People?

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"The point of the 'black' seat," says Elie Mystal, editor of the popular online legal tabloid Above the Law, "is to recognize and appreciate the fact that there was in this country a people with a historical position of servitude and our commitment to work our way out of that. Thomas goes against those things."

And, echoing Marshall, Mr. Mystal adds: "It's not about black and white; it's about where you stand on civil rights."

Yet to many, Thomas is a political and jurisprudential ideal. In his 19 years on the bench, he has held fast to the "colorblind Constitution," consistently coming to conservative results in cases in which race has played a role. Where Marshall looked favorably upon affirmative action policies, calling them "race-conscious measures designed to remedy past discrimination," Thomas believes they constitute "racial discrimination, plain and simple." And where Marshall cited contemporary studies showing racial imbalance to insist that the death penalty "is in all instances cruel and unusual punishment forbidden by the Eighth Amendment" to the Constitution, Thomas looks to the Founders' generation and their comfort with capital punishment to conclude that "it is clear that the Eighth Amendment does not prohibit the death penalty."

"Thomas approaches the law by trying to look at the history or intent of the Constitution and its framers," says Carrie Severino, policy director of the Judicial Crisis Network, a conservative advocacy group. Thomas's rock-ribbed originalism, then, as opposed to "voting differently based on your identity," Ms. Severino insists, "is the test of whether one is being principled judicially."

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