Supreme Court Justice Samuel Alito appeared to be trolling Sen. Elizabeth Warren (D-MA) when he asked questions regarding Native American ancestry during a landmark affirmative action case on Monday.
Justices debated for nearly five hours on Monday over a pair of cases that will determine whether collegiate institutions can continue to consider race on student applications in the admissions process.
Alito questioned North Carolina Solicitor General Ryan Park, who defended affirmative action policies at the University of North Carolina at Chapel Hill, about what is stopping some students from making false claims about their heritage.
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“It’s family lore that we have an ancestor who was an American Indian,” Alito said.
Park contended that it would not “be accurate” for a student applicant to make such claims if they were not true.
But Alito pressed forward, saying, “Well, I identify as an American Indian because I’ve always been told that some ancestor back in the old days was an American Indian.”
Park said, “In that circumstance, it would be very unlikely that that person was telling the truth.”
Park also admitted to Alito that they rely on self-reporting. Alito raised a hypothetical that sounded like the Elizabeth Warren matter (without naming her) that an applicant may claim to be a Native American do to stories in her family. Park that that that would not be honest…
— Jonathan Turley (@JonathanTurley) October 31, 2022
Numerous court watchers speculated that Alito might have been referring to Warren without mentioning her name directly, including such suppositions from George Washington University professor Jonathan Turley.
Warren previously identified herself as an American Indian on a Texas registration card for the State Bar of Texas and in documents related to her work at Harvard University, another school that was defending its race-based admissions policy during Monday’s oral arguments.
In 2018, Warren took and made public a DNA test that found Warren had overwhelming European ancestry and one Native American ancestor six to 10 generations back. After enduring criticism, Warren repeatedly apologized for identifying herself as a minority.
During the argument period over UNC’s affirmative action policies, which stretched on for nearly three hours before the justices considered the Harvard case, Alito asked the counsel for the conservative organization that sued the university about certain scenarios in which a college applicant could mention their diversity within “race-neutral” standards.
“Suppose that a student is an immigrant from Africa and moves to a rural part of western North Carolina … and I had to deal with cultural differences, would that be permissible?” Alito asked. In response, attorney Patrick Strawbridge said it would be permissible since race was not part of the question.
The 6-3 Republican-appointed majority on the high court could be poised to rule that affirmative action policies are unconstitutional when a judgment on the UNC and Harvard cases comes next year.
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Final separate opinions over the cases will likely come by the summer of 2023.
The Washington Examiner contacted representatives for Warren.
