The Supremes Sing the Oldies

By Dana Milbank
Thursday, April 23, 2009

The nation has moved on. The Supreme Court, not so much.

Americans are proud that they have elected as their president a black man who has brought a tone of racial healing. But, if yesterday's argument was an indication, the high court remains mired in the same old racial battles, as the conservative and liberal blocs, abandoning hope of common ground, slugged it out over the latest racial discrimination case headed toward an inevitable 5 to 4 decision.

The liberal justices harangued the lawyer for white firefighters from New Haven, Conn., who claimed they were victims of discrimination when the city threw out the results of a professional test because no black candidates had earned promotions. Ruth Bader Ginsburg told the lawyer that his argument "can't be right." Stephen Breyer, raising his eyebrows and shaking his head, informed counsel that his claim was "very far-reaching." David Souter angrily accused the lawyer of "turning any race-conscious decision into a discrimination decision, and that equation we certainly haven't made and we're never going to make."

The conservative justices countered by heaping scorn on the city and the Obama administration, which defended taking race into account. John Roberts accused them of seeking a "blank check to discriminate" and informed them that it's "an odd argument to say that you can violate the Constitution." Samuel Alito mocked their claim that the test was flawed. Antonin Scalia derided the city for throwing out the test "for the losers as well as for the winners."

"I think," observed Gregory Coleman, lawyer for the firefighters, "the court is certainly not fully in agreement on these questions."

The justices had had a lighthearted argument the day before, discussing the bra and underpants of a 13-year-old girl who was ordered by school authorities to strip as part of a drug search. "In my experience, when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day; we changed for gym, okay?" Breyer argued. "And in my experience, too, people did sometimes stick things in my underwear."

But yesterday the subject turned to race, and the justices were ready to squabble from the moment the chief justice introduced the case by mispronouncing the name of the defendant, New Haven Mayor John DeStefano.

"Racial classifications are inherently pernicious," argued Coleman, a Texan arguing for the Connecticut firefighters. He managed to toss out the terms "destructive racial politics," "illegitimate uses of race" and "racial favoritism" before the liberal justices interrupted.

John Paul Stevens raised a question about whether it was really a race-based decision. Ginsburg compared the test to one that "disproportionately excludes female applicants." Souter said Coleman made "no distinction" between discrimination and benign race consciousness.

Coleman was abrupt. "No, I completely disagree with that, Justice Souter," he said, and later, "I disagree with that as well."

The lawyer knew he had no reason to be solicitous of Souter -- who, like seven other justices, had already made up his mind. In fact, both sides directed their arguments toward only one man, Anthony Kennedy, who will give either the liberals or the conservatives their fifth vote. Kennedy proposed a hypothetical "designed to ask you the question whether or not race consciousness is ever permissible."

Immediately, the other justices tailored their own arguments to Kennedy's line of thought. "What if you've got the basis of Justice Kennedy's hypothetical?" inquired Souter. "Is that your answer to Justice Kennedy or not?" asked Breyer. Ginsburg pressed further about "what you just answered to Justice Kennedy." "I'm not sure I understood your answer to Justice Kennedy," Stevens announced.

It was time for the other side -- Edwin Kneedler for the Justice Department and Christopher Meade for New Haven -- and for the conservative justices to take their swings.

Roberts voiced doubt that the administration would argue the same way if the city had said, "We think there should be more whites on the fire department." When Kneedler insisted that the Justice Department would indeed take the same view if minorities had done well on the test, Scalia retorted: "I don't think you'd say that." Alito asked Kneedler "how can we possibly" do what the city requested.

"So they get do-overs until it comes out right?" Roberts asked. "Why is this not intentional discrimination?" he asked later.

Clarence Thomas, whose vote in favor of the white firefighters is a mathematical certainty, followed his usual oral-argument procedures: He massaged his chin, leaned back in his chair, sucked on a candy, closed his eyes, looked at the ceiling, rubbed his head and whispered to his neighbor.

It was again time for the Only Justice Who Matters to speak. "Counsel," he said, as everybody turned to him, "it looked at the results and it classified the successful and unsuccessful applicants by race. And you want us to say this isn't race? I have trouble with this argument."

Uh-oh. Moments later, Kennedy resumed his criticism. "You are loading the equation," he told Meade, likening the city's argument to "two tracks on the audio that don't quite fit."

The other justices bickered on -- "are you just changing positions on that? . . . how's that a strong basis in the evidence?" -- except for Thomas, who put on his glasses and caught up on some reading.

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