Affirmative action, judicial activism, and original intent

A few observations on the Fisher king:

From a historical perspective, the claim that courts ought to use the 14th Amendment to strike down democratically adopted affirmative action programs looks like the rawest sort of judicial activism. It is, in other words, exactly the kind of thing conservatives have spent the last several decades decrying, whenever it resulted in the invalidation of laws they liked.

Now that this same procedure is being used to invalidate laws conservatives don’t like, what used to be “judicial activism” suddenly becomes enforcing the constitutional rights of discriminated-against Americans — in this case, white people — against the mob rule of biased legislatures.

That Justice Scalia can reconcile his supposed opposition to judicial activism and his supposed fidelity to originalist interpretation with his willingness to declare affirmative action programs unconstitutional is a nice illustration of the human mind’s ability to tolerate cognitive dissonance, and the human soul’s ability to tolerate rank hypocrisy.