"Ricci raised the bar considerably on overt discrimination against one racial group simply to undo the unintentionally racially skewed results of otherwise fair and objective employment procedures (in this case, examinations). It's not enough for a city to say, as did New Haven, that it was afraid of being sued by black firefighters."
Yes, but that sounds like a pretty low bar to clear in the next case. It may be an increment of raising the bar, but everything depends on the next case. And since it was a statutory interpretation case that declined to address the constitutional level, Congress could amend the statute and neutralize it altogether. Krauthammer is writing in an aspirational mode... and defining "considerably" downward.