Here’s a very judicious analysis of the ambivalence of judicial activism when it comes to affirmative action. Most Americans, unlike Sotomayor, thank all race-based legal preferences are unjust. But most elected officials don’t oppose them for fear of being branded racist. Most bureaucrats--governmental, educational, and corporate--actually like them. So the only effective curb on their excessive used of them has been the courts--really, the Supreme Court. The Court, in such cases, might be accused of judicial activism, insofar as it is using questionable constitutional interpretations to thwart the will of elected officials. But that judicial activism, sometimes at least, is populist or backed up by public opinion. So the Democratic claim of judicial activism against this conservative, individualistic impulse of the Court, if understood be the people, might actually make the Court--when led by "Republican justices"--more popular. I have to admit that cases like GRUTTER are just about impossible to integrate into my theory of the consistent defense of judicial restraint.

I notice that Sotomayor has talked a lot about the narrowness of not regarding DIVERSITY as a legal category. Maybe the Republicans should try to educate Americans about the injustice the Court has defended or, better, created of having the educational goal of classroom diversity trump normal considerations of racial justice and considering people as individuals before the law. You don’t have to believe that all affirmative action or race conscious policies are unconstitutional to see that only possible constitutional justification for them is remedying the effects of past discrimination or past injustice. Here, the dissent of Thomas in GRUTTER is the primer.