Washington Post columnist Eugene Robinson argues that Judge Sotomayor’s “action [in Ricci v. DeStefano] is more properly seen as an example of judicial restraint” than of judicial activism. I think that he mistakes what’s at issue. A few comments:

1. My core complaint, and the complaint of Judge José Cabranes (a Clinton appointee), about the perfunctory per curiam opinion that Sotomayor and her panel colleagues is not that the result she reached was necessarily the wrong one. I believe that I have been agnostic on that question (though I will point out that even President Obama’s Department of Justice has argued to the Supreme Court that Sotomayor did not “adequately consider whether, viewing the evidence in the light most favorable to [the plaintiff firefighters], a genuine issue of fact remained whether [the City’s] claimed purpose to comply with Title VII was a pretext for intentional racial discrimination in violation of Title VII or the Equal Protection Clause.”)

My complaint is instead that Sotomayor engaged in shenanigans designed to bury the claims of the plaintiff firefighters, shenanigans that Judge Cabranes exposed in his blistering dissent from denial of rehearing en banc. Simply put, she didn’t give the firefighters a fair shake, and she seemed to be trying to prevent further review of their claims.

2. Whether you call Sotomayor’s malfeasance “judicial activism” or not depends on how you define that term. If you use it to refer to a judge’s indulgence of her own policy preferences, then you might reasonably allege that Sotomayor engaged in judicial activism (though proving her subjective motivation is difficult or impossible). In any event, there are plenty of categories of judicial wrongdoing beyond “judicial activism,” and the term “judicial restraint” certainly doesn’t capture the behavior that Judge Cabranes complained of.

3. Repeating the White House spin, Robinson contends that there was “ample precedent” for the unsigned per curiam opinion that Sotomayor joined (and, I suspect, wrote). As I’ve explained, the White House’s account is at war with both Judge Cabranes and the Obama Justice Department.