Nice post and I even liked your two links, but here is what you missed. I am all for Affirmative Action if it is based on two things. Income & fairness.

The income part is easy, people from lower economic families do need more help and should be afforded more opportunities. Just like when people apply for federal jobs they get extra points for being a veteran; I could see giving a person extra points for coming from a low in come family or household. I know many a black person who need no handouts and are sending their kids to expensive colleges.

Fairness is the hard part. Take this case for example. Was what happened close to being “fair”. No, because if I read the story right, had ANY of the blacks passed the test they would have been promoted first, BUT none did. Oh well, had one past I can understand the need for (at times) minorities or women going to the head of the line. But they must be qualified to be in that line first.

As a 26 year Law Enforcement Officer, we need a lot more women and minorities in policing, however, over the last 15 years it has gotten better. But when it comes to promotion; that is when the line becomes fuzzy. If two candidates are equally impressive, I can understand promoting the minority as a tie breaker. But all too often, people of color/sex are promoted too fast and beyond their ability and the result can be bad for all.

I still believe at this point in our history that Dr. King would side with affirmative action “IF” all things were equal, but not at the expense of qualifications. And that is where the line should be properly drawn. We can not say on one side of our mouth that race should not be a factor and then on the other side say, we can hold Caucasians back for Political Correctness. We must take race out of it, however, by putting forth an economic provision we are really helping those who need help the most and if most “happens” to help minorities, this neocon is fine with it. Help the helpless, not the clueless.

Shit, you're right, there was a 'b' in there.

Are you saying that a "split court" constitutes "judicial activism"?, . . . which side was engaging in the activisim? . . . and what evidence can you provide?

Evidence? I've offered not a bit of it. I'm not a lawyer (oops, IANAL) and have never pretended to be one. I would say, however, that my lazy definition re: judicial activism is one derived from something GG wrote back in January '08:

In reality, the only ones engaged in "judicial activism" -- which means, I suppose, determining the propriety of a court ruling based on outcome preferences rather than legal analysis -- are the ill-informed critics of the court's ruling, who are judging the ruling based exclusively on their objections to the outcome.

For me, the interesting issue isn't really a legal one as much as it is the political and social context in which it's embedded. So, for example, we see in GG's point #2, this observation:

The irony of using Ricci against Sotomayor has always been that the reason this case resonates for so many people is due to empathy for the white firefighters. That irony is underscored by today's ruling, as Justice Kennedy devotes multiple paragraphs at the beginning of his opinion to highlighting all of the facts (as opposed to legal arguments) which make people sympathetic to Ricci. Conversely, Justice Ginsburg, writing for the dissenters, noted upfront that the white firefighters "understandably attract this Court's sympathy," but it must be the law -- i.e., long-standing legal precedent and the purpose of Title VII of the Civil Rights Act -- which determines the outcome.

By the way, you really startled my Dad, timothy2, by bringing him into the conversation.

The four far-right hard liners were obviously going to rule for Ricci, so predictable are they, and the swing vote pantywaist who still lives in his mommy's house (literally, in Sacramento), was almost certainly going to do so as well, because it was unthinkable that he'd rule against his own race and class. Never mind that this ruling was the very model of the sort of "legislate from the bench" judicial activism that the far right hypocritically condemns. What they really mean by judicial activism is when judges uphold laws that they don't like, and strike down laws that they do like, based on their own personal constitution, not the actual one. It has nothing to do with the actual legal merits of a decision, and everything to do with their own personal preferences.

With each such decision, they further reveal themselves to be both ethically and intellectually bankrupt, staunch rearguard defenders of privileged white Christian male supremacy (yes, even Thomas, a self-hating black man if ever there was one), in the face of a demographical and cultural shift that no amount of such reactionary rulings are going to prevent from ultimately transforming the country into one that they don't recognize, let alone abide, where privileged white Christian males are going to make it on merit, not privilege. Like it or not, that day is coming, and there's literally nothing that they can do to change it, no matter how judicially active they are. It's a lost cause, and a quite pathetic one. Was sad, sad people they are, desperately and transparently trying to prop up a deservedly dying world.

What next, upholding Plessy and Korumatsu? They would, if they could.

Where we are spliting hairs is "special for the Negro". How "special" or far do we go? Read my post below. Like I said, I am for helping the helpless, not the clueless....

With his "brilliant" 11D chess strategy of arguing cases that he hopes to lose. Uhuh.

So who did write it? She was part of a 3-member panel that authored the decision and left it unsigned. If we can't hold those 3 people accountable, then who? Santa Claus? Jesus? Michael Jackson's ghost?

Wow. You keep flip-flopping. First you claim she's the sole author. Then, you ignore that you got nailed on that. Now, you're back to trying to blame her as the author because the opinion was per curiam? Here's who you blame, Genius: THE ENTIRE PANEL!

I'm deeply skeptical of this being a prime facie case of disparate impact.

Well, take that up with Justice Kennedy since it's exactly what he wrote in the opinion that you obviously haven't read. :)