THE SUPREME COURT yesterday preserved -- for the moment -- an important provision of civil rights law, made it more difficult for employers to uphold that provision and concocted a standard never before applied in such cases. Most disappointing, the court took all these steps even though it did not have before it a fully developed record of the facts.

Ironically, the Limbaughian "Lunatic Fringe", led by Limbaugh, now ignores that the questions raised by Judge Cabranes' dissent in the Second Circuit's decision to deny rehearing en banc (the dissent they championed so much as proof of the bad handling of Ricci by the 2nd Circuit) were largely ignored by the Supreme Court. The National Review laughably claims that the the Gang of 5 showed "judicial restraint" by rewriting Title VII instead of reaching the constitutional questions Judge Cabranes said the case carried.

The irony is rich in all of this. Yet again, we find extreme right wing judicial conservatives (this phrase now clearly includes Stuart Taylor) cheering on judicial activism and complaining vociferously about restrained actions by the courts. Linda Greenhouse writes:

Like that decision or hate it, cheer Monday’s ruling or deplore it, one thing that is clear from reading the Supreme Court’s 89 pages of opinions in the case is that Judge Sotomayor and her colleagues played by the old rules, and the court changed them. Although “Sotomayor Reversed” was a frequent headline on the posts that spread quickly across the Web, it was actually the Supreme Court itself that shifted course.

(Emphasis supplied.) This is not constitutional shifting by the Court. It was the rewriting of a statute duly enacted by Congress. It was brazen and lawless judicial activism. Greenhouse continues:

To understand the nature of the shift requires a bit of history. Congress enacted Title VII of the Civil Rights Act of 1964, the statute at issue in the Ricci case, with a simple command to employers: thou shalt not discriminate on the basis of race or other protected characteristics, including sex and religion. But the simple proved to be complicated. An employer of blue-collar workers in North Carolina, Duke Power, required a high school diploma of all job applicants, a requirement that screened out 88 percent of black men in that region at that time.

In a 1971 decision, the Supreme Court ruled unanimously that a test that was “fair in form, but discriminatory in operation” could violate Title VII even without proof that the discrimination was intentional. Congress eventually amended Title VII to codify that decision, Griggs v. Duke Power. The rule was clear: if a job requirement produced a “disparate impact,” the employer had the burden of showing that the requirement was actually necessary.

. . . The early Supreme Court decision and later Congressional ratification represented a highly visible social settlement in the employment discrimination area. But beginning in the 1990s, changes in the Supreme Court’s membership and outlook began to unravel not only the legal structure, but also the philosophic one that had kept the settlement intact.

Powerful voices on the court, including Justice Anthony M. Kennedy, who wrote the majority opinion on Monday, began to call for something close to a zero-tolerance policy when it came to government counting its citizens by race for any purpose. And the court became skeptical of Congress’s making its own legislative judgments in ways that threatened to expand the boundaries of the court’s own narrowing constitutional vision.

(Emphasis supplied.) In very pretty words, Greenhouse describes what has happened here - the Gang of 5, in areas of equal protection for non-whites and women - has acted for many years in a brazen, lawless and judicially activist manner, overturning settled law and Congressional enactments on their own whims.

The right wing extreme conservatives on the Supreme Court have decided they will write the laws in this area, not the Congress.

And the Limbaughian Lunatic Fringe disingenuously cheers. With the notable exception of Ramesh Ponnoru:

When Judicial Activism Suits the Right

. . . The debates on these issues are highlighting a deep inconsistency in the way my fellow conservatives approach race and the law. Many conservatives oppose Judge Sotomayor’s nomination because she does not appear to support originalism, the notion that legal texts, including the Constitution, should be interpreted according to the meaning that the informed public assumed them to have when they became law. . . . But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint.

. . . This brings us to the case of Frank Ricci, a firefighter in New Haven who in 2003 passed a test to get a promotion, only to see the city throw out the test because black firefighters were not doing well on it. Mr. Ricci sued in federal court and lost.

Nor did he catch a break from a panel made up of Judge Sotomayor and two of her colleagues from the United States Court of Appeals for the Second Circuit, which heard his appeal in 2007. . . . Mr. Ricci probably deserved his promotion and had a right to his day in court. But contrary to what many conservatives insist, that does not mean he should win the case. The legal arguments for his position, as for the invalidation of the Voting Rights Act, are not absurd: they include reasonable readings of Supreme Court precedent. They just aren’t originalist arguments.

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. . . . 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.

Ramesh Ponnuru is a senior editor at National Review

(Emphasis supplied.) Speaking for me only