Supreme Court Justices Show Support for Michigan's Ban on Affirmative Action

The U.S. Supreme Court returned to the issue of using racial preferences in schools Tuesday, this time to determine if voters can ban Affirmative Action programs by referendum.

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

During the hour-long argument before the court, several justices repeatedly grilled lawyers who represented the groups opposing the 2006 ballot initiative. Chief Justice John Roberts, for one, questioned why the University of Michigan Board of Regents has the power not to use racial preferences in admitting students, but voters do not have the same ability.

"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?,'" Roberts asked the lawyers trying to preserve affirmative action at state universities, reports USA Today.

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.

In addition Justices Antonin Scalia, Samuel Alito and Anthony Kennedy also 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. However, although Kennedy appeared torn during the oral arguments, his sharp questioning of lawyers opposing the ban seemed to indicate that he is more likely to align with the court's conservative wing.

Justices Sonia Sotomayor and Ruth Bader Ginsburg were the only ones who appeared to oppose Michigan's ban.

Justice Ginsburg asked if the court should consider the intent of those who wrote and helped get Proposal 2 on the ballot, while Justice Sotomayor argued against taking away "a tool for diversity," reports The Detroit News.

She expressed concern about a decline in minority enrollment and whether the ban on affirmative action could lead to segregation in Michigan. "It appears to have done just that," Sotomayor said.