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Ricci: When Judicial Activism Isn't Judicial Activism

But the city of New Haven acted in a completely rationale way, consistent with the law and mindful of the standard of disparate impact. The city attorneys were on their game. They had the law right. And their advice was sound -- at least at the time.

That's why what the city did was upheld by eight different federal judges: the U.S. District Court judge who first heard the case and backed the city; a three-judge majority on the 2nd U.S. Circuit Court of Appeals which included Supreme Court Justice Sonia Sotomayor; and the four dissenting justices on the Supreme Court.

Writing for the majority on the Supreme Court, Justice Kennedy said that it wasn't enough for the city to fear a lawsuit due to a practice that caused disparate impact but that it must "demonstrate a strong basis in evidence that ... it would have been liable."

Kennedy has lost touch with the real world. How about the fact that the New Haven Fire Department had already been sued by black firefighters nearly a half dozen times since 1972 for racial discrimination? Do you suppose that meant that the city's fear of another such lawsuit was reasonable?

Here's what is unreasonable -- to expect anyone to believe the whopper that the five conservative justices who sided with the mostly white firefighters just called balls and strikes and decided this case consistent with the law. That's not so.

There was no suspense here. Roberts, Kennedy, Scalia -- and most famously, Thomas -- are all on record opposing affirmative action. And, fresh out of law school, to get a job with the Reagan administration, Alito bragged about belonging to a group called Concerned Alumni of Princeton, whose goal was to keep minorities and women out of that institution. During his confirmation hearings, he claimed he didn't remember anything about the group.

The majority knew exactly where it wanted to go with Ricci and it wasn't above doing a little legal cut-and-paste to get there. All it had to do was brush aside more than 35 years of legal precedent about disparate impact in racial discrimination cases and, as several critics have noted, make new law -- a job best left to Congress.

They have a name for that sort of thing. It's called judicial activism.