To conclude that New Haven acted unconstitutionally is to assume that the Constitution's 14th Amendment mandated a policy of strict colorblindness by state and local governments. Maybe it should have. But the historical evidence that it did is weak. Certainly the conservatives on the Supreme Court have not tried to argue that it did: originalist analysis has been notably absent from their opinions in affirmative-action cases.
Judicial restraint has also been absent. That virtue is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments. To invalidate laws without a strong argument that the Constitution requires doing so is precisely what conservatives usually mean by "judicial activism."In their outrage over the Ricci verdict, I suspect, conservatives have gotten carried away by their laudable fervor against race-conscious policies. But we on the right, of all people, should know that not every wrong has a judicial solution. Conservatives are moved, as well, by their empathy for the Frank Riccis of the world. When President Obama has talked about empathy on the bench, conservatives have responded that, given free rein, it can lead judicial reasoning astray. On race, unfortunately, we are illustrating our own point.
That said, I never liked this case on the basis of fairness. The dyslexia doesn't move me. It's one thing to argue over criteria--say, should race play a role in college admissions? It's another thing to argue that after we've agreed upon a criteria, we should scrap the results because we don't like how they look. This is just me talking. Some legal scholars, and likely some of my guest bloggers, may feel different.