America's unsettled debate over race has too often been conducted between judges writing alone in their chambers rather than in open forums by the public or their elected representatives.
That was true again in a ruling on Monday by the Supreme Court that will set back the use of race in employment decisions.
In a case known as Ricci, the justices revealed their heated arguments in separate opinions that went beyond mere legal precedent and the Constitution. They took note of racial motives and identity politics – or what Justice Ruth Bader Ginsburg called "empathy" toward one particular group seeking justice in this case.
Her dissent, read from the bench in an unusually pointed gesture, used that word in obvious reference to the Senate's current political debate over the nomination of Judge Sonia Sotomayor for the high court. (In her written opinion, Justice Ginsburg used the word sympathy, not empathy.)
That politics has seeped into Supreme Court rulings on race shouldn't surprise anyone. For activists frustrated by the slow pace of the elected branches in resolving difficult political and social issues such as race, the courts offer a quicker chance for justice. As a result, a president's judicial nominations these days are increasingly done with an eye toward pushing courts to bend in a particular political direction.
The Ricci case is a case in point.
The 5-to-4 ruling found the city of New Haven, Conn., had discriminated against white and Hispanic firefighters by throwing out a test for promotions after no blacks passed the test. The test itself was not the problem, the majority ruled, but rather it was the city's rationale in denying the promotions.
A employer must not discriminate against an individual based on race, the court stated. And employers such as the city of New Haven should not act out of fear of a lawsuit if an employment decision adversely affects one racial group.
Not so, said the four dissenting justices.
They said, in effect, that having so few black firefighters in command positions provides a reason for the city to at least consider throwing out the test and then designing a new one that will accommodate the education level, lower income, and particular work experience of African-Americans. And candidates for a promotion don't need to be the best; they need simply have qualifications that are only "necessary to successful performance of the job in question."
The law, in other words, can bend for a political goal, in this case the "vestiges of discrimination in the workplace," even if actual discrimination against current black workers didn't take place.
Ginsburg likened the majority's demand for race neutrality to a chess player who tries to win by sweeping the opponent's pieces off the table. And she cited the Bush administration's rounding up of Muslims in the US after 9/11 as an example in which the use of race and ethnicity was justified in curtailing individual rights.
Justice Samuel Alito, writing in the majority, cited a racial motive for the city's action. He pointed to a powerful black leader with influence over the mayor.
But what's wrong with racial politics, Ginsburg argued, if the motive is to avoid a lawsuit from one racial minority?
This kind of back and forth between the justices is typical in race cases. It points to unresolved political issues in America over such topics as diversity in education and using the law to elevate minorities.
The days of using quotas to fix the effects of past discrimination are over. And more states are banning official use of race in hiring and school admissions. With the election of an African-American as president, the politics of race that is aimed at boosting diversity or widening benefits specifically for minorities now faces an uphill battle.
In Congress, for instance, the House and Senate are at odds over separate resolutions that offer an official apology for America's history of slavery. The lawmakers differ over whether such a gesture would lead to government reparations for today's descendents of slaves.
A recent poll finds half of Americans favor special efforts to help minorities get ahead, while 41 percent oppose. Justices read such polls and bring such political considerations into their decisions. The battling Ricci opinions show just how much Americans have yet to reconcile the need to reduce achievement gaps for blacks and Hispanics with actions that border on racial discrimination against whites, as was the case in Ricci.
Is the country "post-racial" if minorities remain poorer and less educated, even after two generations of race-conscious policies to reduce that gap?
And can racial preferences be justified to promote diversity?
Such questions should not be only for justices to decide. They obviously disagree because their politics hinder their ability to keep justice neutral and to treat rights as individual rights, not collective rights for only one group.
The emotions of race are best left to public forums and for elected bodies to resolve. The fact that the Supreme Court has shifted its stance on race in the past couple decades, and that many of its race decisions are split 5 to 4, is an argument for fewer legal battles and for all Americans to take up the race debate once again.