In a lively argument marked by unusually probing questioning, the justices debated the difference between permissible race-consciousness and unlawful race discrimination. And they asked whether it matters if particular individuals can show they were harmed by government actions rooted in race.
The case, brought by white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement, featured claims of race discrimination on both sides. It was, Justice David H. Souter said, a “damned if you do, damned if you don’t situation.”
Had the city allowed the promotional exam to stand, Justice Souter said, it would have faced a lawsuit from black firefighters. When it threw out the test, promoting no one, it was sued by 18 white firefighters, one of them Hispanic, who claimed race discrimination.
The city said that throwing out a flawed test was a racially neutral act. Because no one was promoted, the city said, no one was singled out on the basis of race. But Justice Antonin Scalia was having none of that.
“It’s neutral because you throw it out for the losers as well as for the winners?” he asked. “That’s neutrality?”
Justice Anthony M. Kennedy, the likely swing vote in the case, seemed sympathetic to Justice Scalia’s reasoning.
The city “looked at the results, and it classified the successful and unsuccessful applicants by race,” Justice Kennedy said to Edwin S. Kneedler, who represented the federal government. “And then you want us to say this isn’t race? I have trouble with this argument.”
Mr. Kneedler said New Haven “did not have the names of individual people” and “looked in general terms at what the racial disparity of the test was.”
The federal government, which appeared as a “friend of the court,” has taken a middle ground in the case. It said that public employers should be protected when they try to comply with a federal law forbidding the use of some job qualifications that have a disproportionately negative impact on members of one race.
But it urged the Supreme Court to send the case back to the lower courts for inquiry into whether New Haven’s asserted justification was a pretext for intentional race discrimination against the white firefighters.
The firefighting tests in New Haven, for promotion to lieutenant and captain, were administered in 2003 and thrown out the next year. Since then, the city has made rotating temporary promotions based on seniority.
The justices proposed a series of analogies and hypothetical questions to explore exactly where race may play a role in government decision making about employment. Justice Souter said, for instance, that the government cannot draw voting districts “without pervasive race consciousness” but “that is not unconstitutional.”
Justice Stephen G. Breyer, drawing on Justice Kennedy’s concurrence in two 2007 cases limiting the ability of school districts to take account of race to ensure integration, asked about the race-conscious measures Justice Kennedy had endorsed, including drawing district boundaries and school construction programs.
Gregory S. Coleman, a lawyer for the white firefighters, said those general measures do not violate the “principle of individual dignity.”
Justice Kennedy asked whether the city would be free as an initial matter to choose between two “very good tests” on the basis that minorities tend to do better on one of them.
Mr. Coleman said that was permissible.
Justice Breyer appeared to think that concession significant. “If that’s so, what’s the difference here?” he asked
The difference, Mr. Coleman said, was that “our firefighters had already taken the test” and “had earned their promotions.”
Chief Justice John G. Roberts Jr. followed up on this point in questioning the lawyer for New Haven, Christopher J. Meade. “Why is this not intentional discrimination?” Chief Justice Roberts asked. “There are particular individuals here,” he continued, “and they say they didn’t get their jobs because of intentional racial action by the city.”
Mr. Meade said the city should be afforded protection because it was trying to comply with a federal law.
Chief Justice Roberts said that standard could amount to “a blank check to discriminate.”
Near the end of the argument, Justice Breyer asked a series of hypothetical questions to test the contours and limits of the white firefighters’ position.
What if, Justice Breyer asked, an employer sets an application deadline but receives an insufficiently diverse mix of applicants? May the deadline be extended?
What if, he asked, a university is dissatisfied with the number of female professors gaining tenure under its usual requirements? May it suspend the requirements?
What if Texas, which admits high school students graduating in the top 10 percent to its public universities, becomes dissatisfied with the resulting racial mix? May it switch to 15 percent?
Justice Breyer, characterizing the white firefighters’ argument, more or less answered his own questions. If employers know the identities of those who would benefit under the old rules and nonetheless adopt new rules based on racial or similar grounds, Justice Breyer said, the new rules would have to be struck down.
Justice Breyer’s point was not that his answer was correct. It was, rather, that the impact of the court’s decision in the case, Ricci v. DeStefano, No. 07-1428, could be enormous.
“This is,” he said, “a very far-reaching decision.”