Challenge To Affirmative Action Ban Reveals Deep Divide At Supreme Court

Justice Ruth Bader Ginsburg held up the other side of the argument, pointing back to the pivotal 1930s case that established the levels of scrutiny that courts use to judge constitutionality of laws under the 14th Amendment — discussing “the judiciary’s special role in safeguarding the interests of those groups that are relegated to a position of political powerlessness.”

The heated exchange came during the court’s consideration of a challenge to the 2006 Michigan constitutional amendment banning race- and sex-based affirmative action plans in higher education admissions, among other areas — a case that, despite the strong views at both ends of the spectrum, likely will come down to Justice Anthony Kennedy’s interpretation of the 14th Amendment and past court decisions on the issue.

The Supreme Court held in 1982 in Washington v. Seattle School District No. 1 (referred to as Seattle) that an anti-busing initiative aimed at stopping a busing program in Seattle was unconstitutional because it restructured the political process to make it more difficult for racial minorities to obtain success in the political process. The Supreme Court has since held that a public university can, only under very limited circumstances, consider race in admissions in order to promote a diverse student body.

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