AP

BY THE narrowest of margins, five votes to four, the Supreme Court on Thursday June 28th ruled against positive discrimination by race in certain American high schools. The ruling is sure to upset many people, striking down as it does well-meaning attempts by local school districts to ensure that a government-funded school's racial mix should not deviate too much from the local average.

Critics will also note that this was the fifth case in a week to be decided on the conservative side by the same team of five judges, and will conclude that the Supreme Court under President George Bush's chosen Chief Justice, John Roberts, has tilted decisively to the right. That conclusion would be correct, but the panic should not be over-done. The judgments have mostly been quite narrowly defined, and may not presage any sharper shift: in fact, the truly conservative members of the bench, Clarence Thomas and Antonin Scalia, were left disappointed rather than thrilled. Chief Justice Roberts ends his first full legal year in the job with his reputation enhanced for cautious attention to the spirit of the constitution. That said, the days of creative judicial activism on the side of liberal causes is plainly over.

The schools case concerned two school districts, one in Seattle and the other in Louisville, Kentucky, but the implications could affect similar programmes in hundreds of other districts. However, the result need not be fatal to attempts to mingle the races. The cases were brought after the parents of white children excluded from schools by the positive-discrimination policy sued. All the court has decided is that skin colour should not be used as a basis on which to assign students to one school or another. That, Mr Roberts argued, is no way to solve the problem of race discrimination.

Across America a variety of other, better, mechanisms for improving schools are being tried. Many educators would argue that instead of being fixated by race (in any case intermarriage and the rapid rise in the number of Hispanics make race a difficult thing to define these days), it makes more sense to design policies that offset the disadvantages faced by all children from poor or uneducated families, regardless of their colour.

Much better, some districts reckon, to consider other indicators such as the receipt of free school lunches as a proxy for poverty. Positive discrimination is acceptable, the court is saying, just not on the grounds of skin colour. The issue is also complicated by the fact that the districts in question are not, anyhow, deemed to suffer from racial segregation that requires correction. So it was not clear in either case that black children's rights were being harmed and needed correcting.

The new court's tilt has also been discerned in a couple of cases concerning free speech, which were decided on June 25th. In one of them the Roberts court struck down restrictions on some kinds of political advertising brought in by a 2002 law on political campaigns, the McCain-Feingold act. Although critics have denounced this as giving in to money politics, the court's ruling arguably reflects the spirit of the constitution more accurately than the 2002 bill does, while being careful to address itself only to the particulars of the case.

The same goes for the second free-speech case, concerning the right of a high-school student to wave a banner reading “Bong Hits 4 Jesus” during a school parade. The right to free speech, the court concluded, does not invariably prevent the exercise of school discipline, and nor does it protect the promotion of illegal drugs. The justices were careful to note that this was only a very limited and exceptional decision. So far, at least, the court is indeed tilting, but not lurching.