U.S. justices appear inclined to uphold affirmative action ban

By Lawrence Hurley

WASHINGTON (Reuters) - 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.

Affirmative action programs, first advocated in the 1960s to combat past discrimination against racial minorities, have faced a backlash from conservatives in recent decades.

None of the five conservative justices gave any indication they would be inclined to rule against the state ban, which was struck down by a federal appeals court in 2012. Only eight justices are considering the case because the ninth, Justice Elena Kagan, is recused.

The case arrives at the court four months after the justices 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 took 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.

OFF THE TABLE

Chief Justice John Roberts was one of the conservative justices who appeared comfortable with the Michigan ban, noting during the argument that the point of the Equal Protection Clause of the U.S. Constitution "is to take race off the table."

Roberts asked Mark Rosenbaum, an attorney for the challengers, whether it was unreasonable for the state to "try to achieve diversity without racial preferences," as Michigan has said it would like to do.