Consider this week's Supreme Court ruling in a reverse-discrimination suit brought by firefighters in New Haven, Conn. (a case in the spotlight because high court nominee Sonia Sotomayor heard it as an appellate judge). The Court held 5-4 that the city was wrong to deny promotions to white and Hispanic firefighters just because none of their black peers qualified for advancement.
But the justices skirted the question of whether a federal prohibition on employment practices that have a "disparate impact" on minorities, regardless of intent, squares with the Constitution's promise of equal protection for all races. Justice Antonin Scalia wrote that his colleagues "merely postpone[d] the evil day" for deciding that issue.
Even more emphatic was a ruling on the Voting Rights Act's requirement that political bodies in some states, including Georgia, receive "preclearance" from the Justice Department before making changes to elections.
An 8-1 majority moved only to exempt a Texas utility from preclearance. But the justices noted that Congress had relied on 34-year-old data in re-approving preclearance in 2006, and warned that requiring it for some states and not others "raises serious constitutional concerns." You might even call it cowardly.
In both cases, the justices' restraint is admirable. While many on the right had hoped that the Court would bar preclearance as anachronistic and unjust, its deferrence to Congress may be a greater conservative victory.
It stands in contrast to the kind of judicial activism on display in, say, Roe v. Wade. When judges cut short public debate, as the Supremes did on abortion in 1973, the result is polarization between people with differing views. The legislative process might not make everyone happy, but its outcome has a broad legitimacy that the sudden edict of unelected judges does not enjoy.
That's why the opportunity for us to take the future of our civil-rights framework into our own hands is so valuable. While the Supreme Court might be able to temper public angst by issuing warnings before it acts, as it did last month, the better solution is for citizens and our elected representatives to take the initative.
We can all agree that "dramatic improvements have occurred" since the 1960s, as the Court wrote — and that protections are still needed. The question is how to best ensure equal opportunity in the 21st century.
Eric Holder may be right that we are too cowardly, or maybe just too immature, to have such a serious discussion. I, for one, hope he's wrong.