Justice Anthony Kennedy, a key swing vote on the high court, appeared to doubt a legal theory against a state's power to implement such a ban, SCOTUSBLOG.com reported. The court is divided into five conservatives, including Kennedy, and four liberals.
But one liberal, Justice Elena Kagan, has withdrawn from the case, presumably because she was U.S. solicitor general in the case's early stages.
In the November 2006 election, 58 percent of Michigan's voters adopted Proposal 2, which amended Michigan's Constitution to prohibit discrimination -- or preferential treatment -- in public education, government contracting and public employment based on race, sex, ethnicity or national origin.
In other words, the state cannot discriminate against someone because of race or gender, but it also cannot give preferential treatment to someone based on race or gender.
Almost immediately following the election, a group of plaintiffs led by the Coalition to Defend Affirmative Action filed suit challenging the constitutionality of the amendment.
The full 6th U.S. Circuit Court of Appeals in Cincinnati, by a vote of 8-7, struck down the state amendment only as it applies to public schools, saying it violates the equal protection guarantee of the U.S. Constitution. It left the rest of the amendment intact.
"It is exceedingly odd to say that a statute which bars a state from 'discriminat[ing] ... on the basis of race' violates the equal protection clause because it discriminates on the basis of race and sex," the state told the U.S. Supreme Court in a petition.
The justices should hand down a decision within the next several months.