Ricci is not decided based on any constitutional principles. It is decided asa matter of statutory interpretation.

Correct, it was not. This is a point made clear by the comments of Justice Roberts. Roberts however, goes on to suggest the law in question runs directly afoul of the 14th amendment, and a day of reckoning is coming on that point.

It is decided asa matter of statutory interpretation. It does seem easy to miss that given that Kennedy ignored every precept of statutory interpretation in the book.

I always thought it was a precept of statutory interpretation that a statute would be interpreted in a narrow fasion to avoid being held unconstitutional where possible.

Ricci is not decided based on any constitutional principles. It is decided asa matter of statutory interpretation.

It does seem easy to miss that given that Kennedy ignored every precept of statutory interpretation in the book.

If in fact the SCOTUS is striking down the 1991 Amendments to Title VII, this is naked judicial activism, which, I once thought, conservatives argued they abhorred.

I don't know which definition of judicial activism, you're using, but I don't believe conservatives are opposed to Marbury v. Madison, or the notion that a Court might strike down a law that contradicts Constitutional limitations. I don't believe conservatives feel that the Constitution contains no limitations on race.

I wrote a number of posts on the subject at Talk Left. 3 today.

Thank you, I didn't recognize that you were Big Tent Democrat; otherwise I would have known where to look. It just seems like you had something to say and weren't saying it.

I'll read it all later today.

If that is what the Court decided, then it should have remanded for more fact finding.

The record simply does not support your assertion or Kennedy's, imo.

It is one thing to say New Haven was not entitled to summary judgment on this record, it is another to grant summary judgment to the plaintiffs on this record.

I don't think the Court is intending to strike down the concept of disparate impact. Rather, it's saying New Haven vastly overreached in trying to avoid it given that they took extraordinary measures ahead of time in vetting the test, even having it made by an outside agency.

The issue in THIS CASE, the Ricci case, was whether attempting to comply with Title VII, as New Haven was, could lead to liability under, absurdly, Title VII.

Justice Kennedy, and you apparently, believe that answering YES to that question is a logical result.

Your problem, as is the Court's, is with the law itself. Rather than deal with that fact, you argue nothing to the point.

Unless we read Ricci as overruling Griggs AND striking down the 1991 amendments to Title VII, which you seem to do, then Kennedy's opinion is ridiculous.

If in fact the SCOTUS is striking down the 1991 Amendments to Title VII, this is naked judicial activism, which, I once thought, conservatives argued they abhorred. I never believed it of course but they did argue it.

Now consider this - what if Congress says, no, Kennedy misunderstood Title VII and we are fixing it now by amending the law and overturning Ricci (as the Congress did after a similar decision by the SCOTUS in Wards Cove.) What will you say then?

What Scalia said today - "disparate impact" (and thus the 1991 Amendments to Title VII) are unconstitutional has some principled consistency.

It is what Kennedy did in fact, by the back door.

That is why I prefer Scalia's concurrence. It is much more honest in its judicial activism.

Still, this is not going to help Sotomayor's nomination case, in terms of public opinion, though it will certainly endear her to the Democrats in the Senate, who in the end don't give a damn about public opinion this far away from an election.

Sotomayor is doing just fine in terms of public opinion, contrary to your misguided opinion.