Charles Krauthammer, carrying on the search for a silver lining in the Michigan cases, argues that the Court did the country a service by not prematurely cutting off debate on an important issue. There are circumstances under which his argumetn has merit. This isn't one of them.

First of all, it's not clear that the premise, the comparison to Roe, is valid. The country is much more mature now, and has reached consensus on racial prferences to a much greater degree than we had on abortion in 1973. I wasn't around, but I seriously doubt that the country had had an ongoing, vigorous debate on abortion since 1948. I doubt the word was even uttered in polite company until about 1965. With racial preferences, we've been talking about it publicly since 1978 and Bakke, and now, even majorities of blacks, the main beneficiaries, don't particularly care for preferences. And the general discussion on race has been taking place since before the country's founding.

Secondly, if you're going to say, "play on," why take the case? It's one thing to take a case for the purpose of making a decision. But if you're not going to decide anything? No, the net effect of the Court's decision is to effectively cut off debate on preference for another generation. It gives moral authority and weight to those who would impose or keep them, and it makes it very difficult for opponents to argue unconstitutionality.

Finally, conservatives never argued for judicial activism in this case - they argued for a clear reading of the law. Title VI & the 14th Amendment both state clearly that you can't discriminate based on race. Not everything is up for debate and reappraisal. Not every proposition deserves a full public hearing or the public's attention. If the Court refuses to cut off debate on certain ideas, then judicial review, using the Constitution as a standard, really can be replaced by arbitrary judicial fiat.