Supreme Court Justices voice Support for State Affirmative Action Ban

A majority of Supreme Court justices appeared to agree Tuesday that states can ban affirmative action policies, an indication that they are likely to uphold a Michigan voter initiative after a decade-long dispute. 

Several justices expressed doubts that the constitutional amendment — which banned discrimination or preferential treatment on the basis of race or sex — violates minorities' equal protection rights, as an appeals court ruled last year.

"Is it unreasonable for the state to say, 'Look, race is a lightning rod ... so why don't we say we want you to do everything you can without having racial preferences?'" Chief Justice John Roberts asked lawyers trying to preserve affirmative action at state universities. 

The justices could be ready to issue a ruling in Schuette v. Coalition to Defend Affirmative Action that such bans are constitutional, but not to go further by taking aim at the wide use of racial preferences by universities in 42 states without bans.

Roberts and Justices Antonin Scalia, Samuel Alito and Anthony Kennedy all questioned why a state's voters should not be able to change affirmative action policies, just as any other level of school or state government can. Justice Clarence Thomas' vote for the ban is virtually assured. 

Among those five, only Kennedy appeared torn during Tuesday's oral arguments, but his sharp questioning of lawyers opposing the ban seemed to indicate that he is more likely to align with the court's conservative wing. "The person to watch here is Justice Kennedy," says Steven Shapiro, the ACLU's legal director.

Justices Sonia Sotomayor, the court's lone Hispanic member, and Ruth Bader Ginsburg were the only ones who appeared to oppose Michigan's ban. Justice Stephen Breyer's viewpoint was more difficult to determine. Justice Elena Kagan recused herself from the case, presumably because of work she did while serving as U.S. solicitor general in 2009-10. 

In addition to Michigan, seven other states ban affirmative action: California, Florida, Washington, Arizona, Oklahoma, Nebraska and New Hampshire. The University of Georgia also bans the policy.

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