AGAINST THE PEREMPTORY CHALLENGE. Adam Liptak has an excellent article ( via ) about peremptory challenges and their ongoing use to produce racially unrepresentative juries. Liptak mentions the 2005 Miller-El case, which I discussed here . (Remarkably, despite extensive evidence that created an exceptionally strong inference of unconstitutional race-based peremptories, Scalia, Thomas and Rehnquist dissented.) This case illustrates, however, the difficulty of proving racial discrimination no matter how overwhelming the patterns of exclusion are, and despite the Supreme Court's invitation state courts are unlikely to supervise procedures very aggressively. Like Liptak, Thurgood Marshall , and Stephen Breyer , I think it's time to do away with peremptory challenges entirely. They aren't constitutionally mandated, and it's increasingly hard to see how permitting the arbitrary exclusion of jurors would lead to fairer trials. Breyer quotes Arthur Goldberg , who noted that "[w]ere it...