In a potential boost to opponents of affirmative action, the conservative majority on the U.S. Supreme Court appeared inclined on Tuesday to uphold a Michigan law that bans the use of racial preferences in state university admissions.
During an hour-long oral argument, several of the eight justices questioned whether a 2006 state constitutional amendment that banned the practice had imposed burdens on racial minorities in violation of the U.S. Constitution’s guarantee of equal protection.
None of the five conservative justices gave any indication they were inclined to rule against the state ban. Only eight justices are considering the case because the ninth, Justice Elena Kagan, is recused.
In June, the court issued a narrow ruling on affirmative action in a different case involving the University of Texas at Austin. In a lopsided 7-1 ruling that few expected, the court warned university policies that take race into account could be more vulnerable to legal challenges in the future. But the court did not strike the policy down and instead sent the case back to a lower court for reconsideration.
The Michigan case raises a different legal question, focusing not on the state’s ban on affirmative action itself but rather the political process that led to the state constitutional amendment being enacted.
Chief Justice John Roberts was one of the conservative justices who appeared comfortable with the Michigan ban, noting at one point that the point of the Equal Protection Clause of the U.S. Constitution “is to take race off the table.”
Although regular swing vote Justice Anthony Kennedy gave no indication he would vote against the ban, he did appear to have some concerns, including whether it mattered that affirmative action advocates were shut out of the process before they could even seek to challenge the decision before university authorities.
Among the justices on the liberal wing of the court, the most vocal in defending the appeals court decision that struck down the ban was Justice Sonia Sotomayor. She said the Michigan law had the affect of “changing the playing field” for those who support affirmative action programs.
A ruling is expected by the end of June.
In November 2012, a sharply divided 6th U.S. Circuit Court of Appeals in Cincinnati found that the 2006 amendment banning the practice, approved by voters in Michigan, imposed burdens on racial minorities in violation of the Constitution’s guarantee of equal protection. The state challenged the ruling in the Supreme Court.
The case is Schuette v. Coalition to Defend Affirmative Action, U.S. Supreme Court, No. 12-682.