Yesterday the Supreme Court began yet another debate about race, this time about whether a test for promotion that favors white candidates may legitimately be used by the Hartford, Connecticut, fire department. White candidates who were denied promotion on the basis of the test had sued, claiming discrimination (i. e. that they were refused promotion because of their race). No black fire fighters passed the Hartford promotion test–it’s not an unfamiliar situation. St. Louis Fire Chief, Sherman George, was fired by Mayor Francis Slay in a similar case.

In the case before the Supreme Court, the arguments quickly took shape around the clichés of the affirmative action debate. Here’s what Robert Barnes reports in The Washington Post as plaintiff’s attorney Gregory S. Coleman’s presentation of the heart of the plaintiff’s case:

Racial classifications are inherently pernicious and, if not checked, lead as they did in New Haven to regrettable and socially destructive racial politics, [Coleman] told the court. He said New Haven officials scuttled the promotions not because they found fault with the test, which they had commissioned from a private company, but because the results caused a political uproar.

The court is sensitive to the perception among some whites that affirmative action programs are unfair to them and seems set to endorse the proposition that racially discriminatory outcomes do not establish a basis for municipalities to reject test results such as the ones at issue in Hartford.

Barnes reports that at one point in the questioning yesterday, Justice Roberts “asked Deputy Solicitor General Edwin S. Kneedler whether he could ‘assure me that the government’s position would be the same’ if the results had been reversed — if black applicants had scored well and no whites were eligible for advancement.” Apparently Justice Roberts did not find Kneedler’s affirmative answer satisfactory, and he is right; though his initial question is wrong and wrong headed.

White racism remains entrenched in American life from top to bottom, the institutional racism of white privilege. It may be that affirmative action programs have done all they can do to change this situation and that what remains must be left to hope and good will as our society evolves. But if the court rules as it seems set to rule and endorses institutional racism, that will be a serious setback to the almost century-old effort to redress racial injustice through the courts, to the legacy of James Weldon Johnson, W. E. B. DuBois, and Thurgood Marshall.

As Barnes puts it:

[These] arguments come as the court has grown more skeptical of [race based] policies, and in the wake of the election of the nation’s first black president, who has urged a new conversation about the effects of past discrimination and the future of race relations.

It will be a truly mournful thing if one consequence of the election of Barack Obama turns out to be an endorsement of white privilege by the United States Supreme Court.