Even a conservative can see the historical fraud that some on the modern Supreme Court are engaging in this case.

"To conclude that New Haven acted unconstitutionally is to assume that the Constitution's 14th Amendment mandated a policy of strict colorblindness by state and local governments. Maybe it should have. But the historical evidence that it did is weak. Certainly the conservatives on the Supreme Court have not tried to argue that it did: originalist analysis has been notably absent from their opinions in affirmative-action cases.

Judicial restraint has also been absent. That virtue is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments. To invalidate laws without a strong argument that the Constitution requires doing so is precisely what conservatives usually mean by "judicial activism.""