The fault is with Congress: the have the power to specify what the limits of conduct are in terms of civil rights. They’re just too lazy and too cowardly to rein in courts that invented the doctrine.
That is correct!
The Court is to decide if existing law/ruling is Constitutional.
Not to “write laws” from the bench.
This is why Congress loves that COVID is being run by Executive Mandate as it means NONE of them has their fingerprints on it.
They are safe from retribution if things go bad.