Justice Kennedy Likely Key Vote in Reverse Discrimination Case

All eyes were on likely swing voter Justice Anthony M. Kennedy during oral arguments yesterday in a reverse discrimination case.

The suit was filed by white firefighters in New Haven, Conn., who passed a promotional exam, only to have the results thrown out because no blacks got top scores. During oral arguments, justices searched “for the line where possible discrimination against one race turns into actual discrimination against another,” the Washington Post reports.

Kennedy is often skeptical of race-based government polices, the Post says. Liberal Justice Stephen G. Breyer apparently hoped to win Kennedy’s support for New Haven’s position with a hypothetical based on a Kennedy concurrence in a related 2007 case, Legal Times reports.

When the lawyer for the firefighters, Gregory Coleman, noted Breyer’s example came from Kennedy’s opinion, Breyer was quick to acknowledge it, Legal Times notes. "That's just what I'm doing exactly," Breyer said.

But Kennedy appeared sympathetic to the conservatives’ position that New Haven had stepped over the line, the New York Times reports. Addressing a lawyer representing the federal government, Kennedy said the city “looked at the results, and it classified the successful and unsuccessful applicants by race. .... And then you want us to say this isn’t race? I have trouble with this argument.”

The federal government, appearing as a friend of the court, is urging a middle ground, the Times says. The Justice Department says the Supreme Court should remand the case for a determination whether New Haven’s cited reason for tossing the results was a pretext for intentional discrimination against the white firefighters.

The case is Ricci v. DeStefano.