Last night I wrote about the fact that Chief Justice Roberts has proven to be the most brazen judicial activist the Court has seen for some time. It is likely that Ricci (PDF) will provide another example of Roberts' judicial activism.

Chief Justice Roberts has been a judicial activist particularly in cases involving race conscious remedies. (See, e.g., my discussion of Roberts' opinion in Parents Involved.) Now, it can be argued that Chief Justice Roberts is correct on the policy regarding race conscious remedies. But it can not be denied that Chief Justice Roberts has taken it upon himself to "make policy" on this issue.

Does Ponnoru believe that Chief Justice Roberts is the type of Justice who "'perceive[s]' that the Constitution, properly interpreted, doesn't actually empower him to "balance" the wisdom of whether the Congress should continue to enact race conscious remedies like Title VII of the Civil Rights Act of 1964?

The oral argument in Ricci is instructive:

JUSTICE STEVENS [addressing the attorney for Ricci]: Are you contending that that's an issue of fact that has to be tried out or that we should accept your version of that -- of that issue?

MR. COLEMAN: I believe that that's an issue of law, Your Honor. It is no different ultimately than what the Court concluded in Croson. This type of an argument that a do-over is not a racial classification is exactly what happened in Croson. There was a do-over declared, a -- a rebidding; and yet the Court said, because that rebidding was declared for racial reasons, it would nevertheless be subjected to --

JUSTICE GINSBURG: That was pursuant to to an affirmative action plan, and here we're dealing with this concept under Title VII of disparate impact. . .

What Justice Ginsburg is pointing out here is that the Ricci case is NOT an affirmative action case. Instead it is a case about what an employer must do to comply with Title VII of the Civil Rights Act of 1964. In Title VII, as interpreted by the Court, employment criteria that has a disparate impact on minorities, irrespective of discriminatory intent, is prima facie violative of the law. It was the Congress, using its constitutional power under Section 5 of the Fourteenth Amendment, that formulated this policy.

In oral argument, Chief Justice Roberts seemed utterly unconcerned that his approach would tread upon the constitutional power of the Congress:

MR. KNEEDLER [Attorney for the United States]: [Y]our question had two parts of it. You said there are too many blacks or too many whites. That is not a permissible objective under our view. The employer's action has to be tied to a concern about a violation of the disparate impact of under Title VII.

CHIEF JUSTICE ROBERTS: That's the part I don't understand. What you're saying is that the department can engage in intentional discrimination to avoid concern that they will be sued under disparate impact. Why doesn't it work the other way around as well? Why don't they say, well, we've got to tolerate the disparate impact because otherwise, if we took steps to avoid it, we would be sued for intentional discrimination? This idea that there is this great dilemma -- I mean, it cuts both ways.

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(Emphasis supplied.) Here is Roberts the judicial activist. The Congress has stated, by exercise of it constitutional power under Section 5 of the Fourteenth Amendment, that employers must avoid criteria that has a disparate impact in hiring. Chief Justice Roberts chooses to decide, in Ponnoru's words, that it is HIS JOB to decide the proper policy in these matters. Whether Roberts is right or wrong in his views on the proper policy, it is obvious that he views his role as setting policy in this area, not that of a neutral arbiter of the law as it exists.

Consider this point made by the Obama Administration attorney:

MR. KNEEDLER: One of the purposes of -- of the disparate impact test, as this Court has recognized, is -- is as a prophylactic against intentional discrimination, to root it out; also, as this Court said in Watson, to identify possible instances of subjective or -- excuse me, subconscious discrimination, and in some cases, to break down barriers that have existed in the past, for example, possibly the 60/40 weighting requirement that was under longstanding collective bargaining agreement. The disparate impact test has been recognized since Griggs as fundamental to fulfilling the purposes of Title VII.

Title VII also has another important objective, as this Court has repeatedly recognized, which is that the voluntary compliance is the preferred objective -- excuse me -- preferred means of achieving the objectives of Title VII. Employers therefore require considerable flexibility in assessing their practices and deciding on appropriate action if it looks like one of their actions -- their practices would violate [Title VII] . . .

As is clear to any honest observer, the Congress has dictated a policy in Title VII that insulates New Haven's actions from attacks such as Ricci's. The "conservatives" on the Court do not like that policy and want to replace it with one they favor. Perhaps their policy preference is superior - but it is policymaking from the bench. It is the very essence of judicial activism. Consider this exchange between the attorney for New Haven and the Chief Justice:

CHIEF JUSTICE ROBERTS: Can I ask you to touch on the distinction between racial discrimination and race-conscious action? The actions that were taken in many of our cases, in Croson and Adarand, Parents Involved, Wygant, were obviously race-conscious actions; there was a reason that the governments in those cases were taking the action. It was because of what they saw as the impact on race. Yet we concluded that was racial discrimination. So what's the -- how do you draw the line between race-conscious that's permitted and racial discrimination that's not?

MR. MEADE: Well, two answers, Mr. Chief Justice. First of all, this race consciousness is race consciousness that's mandated by Federal law. This is not a discretionary decision by an employer.

(Emphasis supplied.) Mandated by federal law. A law enacted by the Congress exercising its Constitutional power under Section 5 of the Fourteenth Amendment. Chief Justice Roberts does not care about that. HE knows best. He will impose his policy views on the question.

Whether Chief Justice Roberts is right on the policy is not my point. My point is that Roberts and the "conservative" wing of the Court is intent in acting in a brazen judicially activist manner. The Jeffrey Rosen's of the world assured us that Roberts was a "modest" judge. A judicial minimalist. The facts have proven how inept Jeffrey Rosen is at judging judicial nominees.

One final snippet to demonstrate the "modesty" of Chief Justice Roberts:

CHIEF JUSTICE ROBERTS: I guess it would go to how you construe the statute. It seems to me an odd argument to say that you can violate the Constitution because you have to comply with the statute.

MR. MEADE: Well[,] I would disagree. That would only be true if there were some doubt as to the constitutionality of the disparate impact provisions. But . . . this Court first articulated "disparate impact." Congress has reaffirmed that.

Meade of course is referring to Griggs. The "modest" judical minimalist Roberts seems unconcerned with the actions of Congress and the the existence of a 38 year old precedent of the Court upon which he sits. What does Ponnoru make of this "neutral decisionmaker?"

Speaking for me only