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Monday, June 29, 2009

Excitement on the SCOTUS beat as the Court overturns the lower court Ricci decision in a 5-4 vote along the usual partisan breakdown. Since Sonia Sotomayor had been part of the Second Circuit's upholding of the original decision, now overturned, this decision will undoubtedly receive a lot of attention even beyond the usual contentiousness that surrounds affirmative action. I haven't followed the case closely enough to say much of anything about it—and to be fair it sounds like an especially hard case—though my gut reaction to any 5-4 decision from the Roberts court closely matches this take from conservative columnist Ramesh Ponnuru in the New York Times:

The debates on these issues are highlighting a deep inconsistency in the way my fellow conservatives approach race and the law. Many conservatives oppose Judge Sotomayor’s nomination because she does not appear to support originalism, the notion that legal texts, including the Constitution, should be interpreted according to the meaning that the informed public assumed them to have when they became law. We argue as well that judges should try to overcome the biases of their backgrounds in the name of self-restraint. But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint.
Where Ponnuru and I differ, of course, is in his belief that originalism as a judicial philosophy has any useful content whatsoever. I don't think it does; as I've said before, it's a rhetorical strategy, not a method, deployed when convenient and passed over when not.