He concludes that "if any judicial philosophy qualifies as…

To Josh Patashnik of The New Republic, my latest column was "a real head-scratcher." On the magazine’s blog, he refutes what he believes I argued — that "the Supreme Court should ban racial preferences because it’s what the majority of Americans want."

He concludes that "if any judicial philosophy qualifies as ‘activist,’ then the one Taylor proposes — that the role of a court is to implement what it sees as the will of the public when the political branches fail to — surely qualifies."

To the contrary, a decision reversing Ricci would not stretch the meaning of the Constitution in the slightest. Rather, as my column stated, it would "vindicate the central thrust of the 1964 Civil Rights Act and the Constitution’s equal protection clause."

I respectfully submit that Patashnik’s well-argued critique misapprehends my central points, in part — I must confess — because I muddied them up a bit by trying to pack too many ideas into too few sentences and failing to make clear the logical steps underlying my argument. For those interested in whether overturning Ricci should be defined as "judicial activism," I have posted a response to Patashnik in which I unpack those steps.

Once there, scroll down to see the comment.

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