I was privileged to have had the opportunity to witness oral arguments in the Ricci v. DeStefano discrimination case at the U.S. Supreme Court. Expecting organized protests from various “professional” civil rights groups, I witnessed nothing of note outside the courthouse that morning- albeit a few DC area firefighters lending support to their colleagues caught in the struggle.
As arguments commenced, I was struck by the opposing ideological framework exhibited by the justices as they questioned attorneys from both sides. Well aware of the philosophical distinctions and dissenting opinions indicative of this court, I saw firsthand the emergent forces that now shape the somewhat predictive alignment of these justices.

As arguments unfolded, the words of President Johnson’s 1965 Howard University commencement address came to mind:

This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.

It was evident these phrases were echoing in the minds of some sitting on the bench this day as well.
For Justices Breyer, Souter and Ginsberg, an outcome-based approach to addressing this issue seemed entirely in order. The question of discrimination as part of the promotion process should be regarded as subordinate to the greater injustice of racial disparity within the ranks of the New Haven fire department. City officials, they might argue, acted accordingly in rejecting the test scores, which would only serve to exacerbate an already unacceptable situation. However unseemly it may be to some, the end- a diverse group of officers-would justify the means- discrimination against the few for the good of the department and society as a whole.

Justice Breyer proposed his “damned if you do, damned if you don’t” conundrum in the context of pardoning city officials for their actions in what he determined was a no-win situation. The problem with this assessment is that it equates the possibility of a discrimination suit being brought against the city, (by minorities who have little or no substantive evidence to base their claims), with that of blatant, irrefutable evidence that racial discrimination occurred relative to the promotions denied the other firefighters. There was little (if any) defense of the claim that disregarding the test results was discriminatory. Rather, the stance taken was that the city official’s actions were both unavoidable and justifiable.

In contrast to this line of reasoning, Chief Justice Roberts and Justice Scalia appeared frustrated and annoyed that the merits of surgical discrimination were being debated yet again. Justice Roberts asked the city attorney if the city would have thrown out the test results if no whites had scored high enough for the promotions. Justice Scalia asked if this wasn’t simply a matter of “casting out the winners with the losers.” More than one justice probed attorneys on both sides as to where they believed race-consciousness ended and race-based decisions began.

It would be overly facetious to state that Justice Thomas was intently focused on the proceedings. In fact, he appeared hopelessly bored. I had hoped that he might weigh-in on the topic and ask a question, or perhaps two. Well, it didn’t happen. Consequently, it is difficult to speculate from my brief observation just how he will side in this case.

But upon grabbing a copy of My Grandfather’s Son from the Supreme Court bookstore, I read on my flight home as Justice Thomas described a related situation that took place some thirty years prior. During the 70’s, the NAACP was investigating the disproportionate rate in which blacks were failing the bar exam. As I read these words, I was struck by the similarities in Ricci and formed my opinion about how he might rule in this case:

This only left one argument, the Legal Defense Fund’s “adverse impact” theory, which held that if a neutral examination produced disparate results among the races, then it could be considered discriminatory. But I didn’t buy that, either, knowing that no measurement of any part of our lives ever produced identical results for all racial or ethnic groups.

In his Howard speech, President Johnson asks, “For what is justice?” He quickly responded to his own question by stating,” It is to fulfill the fair expectations of man.”

The question now before this court may well be, “Whose fair expectations shall they seek to fulfill?”

Hopeful spectators line up outside the U.S. Supreme Court in advance of oral arguments in the New Haven firefighters discrimination case.