Despite some attempt to cover himself with some concessions about how all nine justices are "activists" (although note that his mash notes to Alito routinely referred to him as a proponent of "judicial restraint"), when it comes down to it, when Stuart Taylor agrees with a judicial decision that displaces a policy preferred by elected officials it's not really "activist":
But it would more than justify a ruling for the white New Haven firefighters. Far from being activist, such a decision would vindicate the central thrust of the 1964 Civil Rights Act and the Constitution's equal protection clause.
Armando Llorens makes the first obvious point: This is a statutory interpretation case, in which stare decisis should carry a heavy weight. If Congress disagreed with judicial interpretations of the Civil Rights Act, it has had nearly 40 years to modify it. The fact that Congress hasn't renders claims that the Court was "vindicating" the "central thrust" of the Civil Rights Act nonsensical. (Not to mention that the idea that protection of white privilege was a central thrust of the CRA isn't very plausible even on its face.) On the idea that it would vindicate the "central thrust" of the Constitution, the evidence for this is exceptionally weak, as Taylor himself concedes. One can agree or disagree with overturning Ricci, but there's no question at all that doing so would be "activist."
I, personally don't think this is a very meaningful claim in and of itself, but that hasn't been Taylor's history. Similarly tendentious is his assumption that if white firefighters performed well, then the paper-and-pencil test must have been accurate enough to function as virtually a sole criterion for promotion. Anybody out there think that Taylor knows anything about the test and knows enough about firefighting to have any idea about whether the test really can carry such weight? Me, neither.
The same goes, of course, for courts following public opinion polls. Whether one thinks it's justified or not, it's "activist" if the term means anything at all. (Although Taylor's standards here mean that Roe was actually a decision of judicial restraint," given the public's strong support for the case; I'm sure he'll apply his ad hoc theory consistently.)
And, finally, it worth noting again that Taylor's language about the "vindicating the central purpose" of the equal protection clause mysteriously vanishes when racial classifications can no longer affect the interests of white people...
--Scott Lemieux
