Letters to the Editor – Weekly Issue of July 12, 2010
Readers write in about Elena Kagan and diversity on the Supreme Court.
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.
If due process requires the judiciary to be colorblind in its treatment of citizens, identity politics in the selection of justices seems to me a deeply troubling, if not constitutionally dubious, practice. History teaches that the line between good and bad identity bias is too fine to leave to public officials.
The cover story characterizes the debate on the function of the Supreme Court as being between (a) those who adhere to the letter of the law as it was unambiguously laid down by the Founding Fathers, and (b) those who assert that modern reality factors into a modern interpretation.
The debate does employ such terminology. But all sides do interpret and, in so doing, make law.
The more useful understanding of the issue of what courts do is to recognize that the split is between those who understand that interpretation is an active and fallible human trait and those who think there is only one answer. The split is between those who adapt to a new reality and those who fool themselves (honestly, I believe) that their view is the one writ in stone.
It is worth recognizing that those judges who claim to be umpires apply their policy beliefs in law as much as those who recognize what they are doing. The inquiry should be into what are the appropriate factors and considerations to guide a judiciary in making decisions, in exercising modesty and restraint and when, as in Brown v. Board, to take a giant step. An important inquiry, in this democracy, should be into how to make sure primary policymaking remains in the hands of an elected legislature.