Hackery indeed. "Judicial activism" has never been anything but a colorful term for "making decisions conservatives don't like." This has been made particularly clear in their criticisms of Sotomayor, where they have complained about her failure to take actions (like overturning Ricci) that would have fit any logically consistent definition of "activist."

Of all the ridicule-worthy diatribes ever written by Taylor---a photogenic apparition of bitterness and legalistic contempt that can only be replicated by the animated cartoon character, Snidely Whiplash---the following words, excerpted directly from his article, stand alone in illustrating the pent-up racial favoritism for which the Ricci decision was handed down:

That issue is racially preferential affirmative action.

Taylor's entire article---indeed, a good many of Taylor's articles, one might find if they suffer upon themselves the prosaic waterboarding of exploring his recent cacophony of diatribes against this singular nominee---does little more than to present a surreptitiously-veiled argument favoring the factual establishment of the fictional "National Socialist White People's Party" led by Henry Gibson's portrayal of Obersturmbannführer Robert Burliss.

To argue that an historically-oppressed minority segment of a free population within the sociopolitical construct of a Republic should not be given preferential treatment, when an individual member of the segment historically recognized as the oppressor demands, without even a smidgen of fact-based evidence, that it is instead better to promote that same preferential treatment only when it conclusively upholds the "Might-Makes-Right" extremist mentality of racial superiority, is in and of itself an illustrative example of "racially preferential affirmative action" that, by its very existence, necessitates the continued need to afford tilting the scales in favor of this Republic's myriad minority segments.

Stuart Taylor should pose for Serutan commercials. And his columns could use a little fiber to bind his bile.

Add to the 9th Amendment the 14th Amendment's "privileges or immunities" provision and there may be rights out there of the people well beyond the first eight of the Bill of Rights, to protect the people from both the federal and state authorities.

It seems to me that the reason why the Ricci case is so contentious is simply because it is extremely difficult to define a 'test' that is truly an objective measurement of 'merit' for promotions. What is the threshold for true objectivity, and who decides? Likewise, if the administrators of the policy define mandatory guidelines to be followed when implemented public employment policies, their guidelines are just as arbitrarily determined, no matter how well intentioned. It's all subjective, it's all political, and therefore, to try to win the argument using principles and logic is absurd. The whole thing reminds me of the 3 questions posed to the knighs in Monty Python's Holy Grail: What is your favorite color?

Hilzoy - thank you so much for spotlighting the Ninth Amendment, when so few commentators do so! Conservatives typically ignore or minimize the significance of A9. This is ironic since they claim to despise government power, yet it is they (like Bork, albeit an off-beat flavor of conservative) that sympathize with States wanting to make things illegal as in Griswold v. Conn., abortion, drugs etc. Worse, the cons even want the Fed to force illegality when it's OK with a State (like medical marijuana in CA.) But that's the principle of the thing, and this time I'll pass on whether UERs actually justify forcing a new fireman test or not. (However, it's important to note that Courts said, IIRC the issue turned on supposed availability of tests that tended to have less disparate results, not the conservative's straw man of never allowing whites to get ahead on average under any circumstances.)

I like you saying you're against excessive activism though. There are some cases progressives should be against, even though they seem pro-liberal at a glance. One is the execrable Kelo decision. We should not go along with governments taking over property so that private businesses which pay higher taxes can be built there. Real "public use" means it's really public.

Here's a good issue-framing exercise: would a Federal murder law be constitutional? You're tempted to say, "of course", but: COTUS actually specifies certain areas for Congress to act (hence the wrangling over whether commerce is "interstate" enough to deserve Federal control, etc.) So technically, by strict construction, it wouldn't be. That's why conservatives love A10, even as they sidestep A9.

tyrannogenius

Excellent point about the 9th amendment. Denying that there are unenumerated constitutional rights is certainly "activist" (by writing the 9th amendment out of the constitution).

And Stuart Taylor is clearly wrong when he writes this:

"Scholars have long applauded liberal justices who have stretched the Constitution's meaning to get rid of unpopular laws that had persisted only because of special-interest pressure. One example is the 1965 decision striking down Connecticut's anti-contraception law."

Scholars, while perhaps personally agreeing the Griswold decision (the one he refers to) have pretty mercilessly lambasted that decision.

This is ironic since they claim to despise government power, yet it is they (like Bork, albeit an off-beat flavor of conservative) that sympathize with States wanting to make things illegal as in Griswold v. Conn., abortion, drugs etc.

There's no point to following any logic in the right's arguments, since they are all just convenient sticks to beat people with at the time and discarded as soon as they're inconvenient. Up-or-down vote vs Sotomayor attack. States' rights vs medical marijuana and Bush v Gore. Instead of trying to argue the logic, progressives should just stick to arguing the hypocrisy: "you said X when it was convenient, now it's not-X: why should anyone listen to you?"

Hypocrisy is the one thing everyone despises. In other people, of course.

"If so, doesn't the ninth amendment force us to choose between the 'activism' of discovering unenumerated rights, and the opposite 'activism' of pretending that there is no ninth amendment? And if you choose the latter on the grounds that granting courts the power to discover new rights in the Constitution is too dangerous, aren't you just disregarding the plain text of the Constitution in favor of producing the consequences that you think are best -- which is judicial activism if anything is?"

It's only judicial activism when I disagree with the outcome. Duh.

Arguing over what constitutes judicial activism seems about as useful as arguing what is or is not "common" sense. Both are essentially meaningless terms (if there was such a thing as "common" sense, wouldn't disagreements be rare?)

Their only function is to serve as pejoratives.

In the case of common sense, you are diminished if you don't have it; in the case of judicial activism, you are wrong if you do it. But the ultimate intent of both terms is to disparage and silence those who hold a different point of view.

If that's not enough, it's one of those clever conservative constructs that liberals get sucked into disputing even though it's an irrational concept. Because it's meaningless, there is no common ground on which to argue.

What should be a rational discussion is reduced to "he said, she said." When that happens, conservatives win if only by not losing.

Whenever I hear a conservative pull out the "judicial activism is the root of all evil " argument I'm reminded of the outcome of Bush v. Gore. Like George W. Bush had the right to be declared POTUS regardless of what the actual vote tally may have been--"The findings indicate that Mr. Gore might have eked out a victory if he had pursued in court a course like the one he publicly advocated when he called on the state to "count all the votes."--simply because his state campaign co-chair declared him the winner and Gore's post-election legal strategy was composed by idiots.

jm, you beat me to the point i wanted to make: i had never heard of stuart taylor prior to reading some ardent defense he wrote of bush v. gore.

on the altogether reasonable assumption that you have to be an idiot to defend bush v. gore, i've assumed the same of taylor and i haven't been disappointed yet.

If New Haven's test had been valid for the purpose of selecting the best candidates for supervisory positions in the city's fire department, the results would have been acceptable. The "4/5 rule" stipulated in the Uniform guidelines only applies in the absence of evidence of validity. The issue isn't discrimination or reverse discrimination, it's bad psychometrics.

You can't give preferences to one race without DISCRIMINATING against others.

Racial discrimination, such as giving racial preference to a wise Latina, should not exist in America. Libs are unfair phonies bereft of logic.

KTinOhio, how do we assess these tests anyway?

"How do we assess these tests anyway?"

Most often, tests used in employment (including professional licensure and certification tests) are based on a job analysis, which is a systematic study of the activities performed on the job and the knowledge, skills, and abilities (KSAs) needed to perform them. Test items (which do not have to be paper-and-pencil) are written to measure these KSAs.

You can't give preferences to one race without DISCRIMINATING against others.

That's right, you can't. So when my Hawaiian ancestors had their kingdom stolen from them at the gunpoint of WHITE American soldiers just over a hundred years ago, racial preferences were clearly given to whites.

When they were forbidden to practice their religion, their customs, or speak their language, and were forced to take Christian names and speak English -- racial preferences were given to whites, who discriminated against the Hawaiians.

When their landed was just cavalierly taken from them and they were herded into crappy workman's housing, prevented from the life of subsistence they knew -- racial preferences were given to whites, who discriminated against the Hawaiians.

Yes, the white racists really screwed my Hawaiian family because they were brown. They perpetrated a massive theft of land and money and deprived them of their rights. That makes it a legal issue, one in which damages are in order.

Finding ways to pay back the Hawaiians for what was stolen from them is not racism, however, it is redress.

You can't give preferences to one race without DISCRIMINATING against others.

Yeah, this country did that for almost two hundred years. We're trying to reverse it now.

Hilzoy,

I read your posting and I still don't know whether you think Ricci should be affirmed or reversed and your reasons therefor. I don't think the 9th amendment has much to do with it, though.

I want to applaud S. Waybright up above for one of the few intellectually honest defenses of Ricci that I've seen. He candidly admits that he favors racial preferences. Most of the "diversity" advocates dance around this point and try to pretend that you can have racial preferences in favor of some people without discriminating against other people. You can't and Wainright's honesty on this point is refreshing.

I can't believe that Stuart Taylor wrote this article with a straight face.

I think you're underestimating just how deeply this ideology is written in the minds of hard-core conservatives. An "activist court" is one that rules in ways that are objectionable to Stuart Taylor, not one that pushes the law in a particular direction.

You're working from a definition of activist in which your views carry as much weight as Taylor's or anyone else's. He's working from a definition that defines which laws should self-evidently be overturned (like Roe and Ricci and possibly Brown) and which should be cast in stone (like the right to bear arms in an elementary school).

Excellent post and thank you so much for bringing up the most overlooked Amendment of them all: the Ninth. Its pretty much the silver bullet that destroys any talk of strict constructionism or original intent.

We have more rights than those specifically enumerated in the Constitution, among them most obviously a right to privacy, a right implied in the 4th and 5th Amendments as well.

I'd really like to see more judicial discussions include talk of the 9th Amendment, but of course no conservative would want that to be the case- it pretty much shreds their individual (as opposed to corporate) rights-limiting judicial philosophy.

f so, doesn't the ninth amendment force us to choose between the 'activism' of discovering unenumerated rights, and the opposite 'activism' of pretending that there is no ninth amendment?

Maybe. Maybe not. Maybe it simply means that if someone asserts a right and there is no text on the right or restriction on the right in the Constitution, then the right exists and must be recognized by the court.