Updated 9
:25 PM ET,Thurs December 10,2015
A general view of the US Supreme Court in Washington, DC, June 18, 2015. AFP PHOTO/JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)Supreme Court building exterior
Supreme Court rules in favor of lethal injection drug
WASHINGTON, DC - MARCH 26: The exterior of the U.S. Supreme Court on March 26, 2012 in Washington, DC. Today the high court, which has set aside six hours over three days, will hear arguments over the constitutionality President Barack Obama's Patient Protection and Affordable Care Act. (Photo by Mark Wilson/Getty Images)
Supreme Court rules on congressional districting
"A pic for the future kids. So they can see that their moms were at the Supreme Court the day love became law," said Rachel Evans via Instagram.
Republicans look beyond marriage ruling
Supreme Court Justice Antonin Scalia waits for the beginning of the taping of "The Kalb Report" April 17, 2014 at the National Press Club in Washington, DC.
Supreme Court Justice makes controversial comments
The Justices of the US Supreme Court sit for their official photograph on October 8, 2010 at the Supreme Court in Washington, DC. Front row (L-R): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy and Associate Justice Ruth Bader Ginsburg. Back Row (L-R): Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr. and Associate Justice Elena Kagan. AFP PHOTO / TIM SLOAN (Photo credit should read TIM SLOAN/AFP/Getty Images)
Supreme Court rules on EPA emissions limits
WASHINGTON, DC - JUNE 25: A gay marriage waves a flag in front of the Supreme Court Building June 25, 2015 in Washington, DC. The high court is expected rule in the next few days on whether states can prohibit same sex marriage, as 13 states currently do. (Photo by Mark Wilson/Getty Images)
GOP hopefuls denounce marriage ruling
A general view of the US Supreme Court in Washington, DC, June 18, 2015. AFP PHOTO/JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)Supreme Court building exterior
Supreme Court rules in favor of lethal injection drug
WASHINGTON, DC - MARCH 26: The exterior of the U.S. Supreme Court on March 26, 2012 in Washington, DC. Today the high court, which has set aside six hours over three days, will hear arguments over the constitutionality President Barack Obama's Patient Protection and Affordable Care Act. (Photo by Mark Wilson/Getty Images)
Supreme Court rules on congressional districting
"A pic for the future kids. So they can see that their moms were at the Supreme Court the day love became law," said Rachel Evans via Instagram.
Republicans look beyond marriage ruling
Supreme Court Justice Antonin Scalia waits for the beginning of the taping of "The Kalb Report" April 17, 2014 at the National Press Club in Washington, DC.
Supreme Court Justice makes controversial comments
The Justices of the US Supreme Court sit for their official photograph on October 8, 2010 at the Supreme Court in Washington, DC. Front row (L-R): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy and Associate Justice Ruth Bader Ginsburg. Back Row (L-R): Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr. and Associate Justice Elena Kagan. AFP PHOTO / TIM SLOAN (Photo credit should read TIM SLOAN/AFP/Getty Images)
Supreme Court rules on EPA emissions limits
WASHINGTON, DC - JUNE 25: A gay marriage waves a flag in front of the Supreme Court Building June 25, 2015 in Washington, DC. The high court is expected rule in the next few days on whether states can prohibit same sex marriage, as 13 states currently do. (Photo by Mark Wilson/Getty Images)
GOP hopefuls denounce marriage ruling
Story highlights
Scalia was questioning the attorney for the University of Texas, which is defending its use of race as a factor in admissions
The arguments came as colleges across the country are confronting racial tensions
Washington (CNN)Supreme Court Justice Antonin Scalia raised eyebrows on Wednesday with a comment he made during the court's hearing of an affirmative action case, in which he seemed to suggest some African-Americans belong in lesser colleges.
The court has been on the wrong side of history numerous times, says author Ian Millhiser of the Center for American Progress. It issued decisions that legitimized Jim Crow segregation, approved the forced sterilization of a woman against her will and forced Japanese-American citizens into internment camps during World War II.
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Other scholars such as Clark Neily of the libertarian public interest law firm Institute for Justice defend the court, saying Brown v. Board of Education -- which led to school desegregation, including in Little Rock, Arkansas, in 1957 -- shows that the court is often "better than the other branches of government and society in general."
7 photos: Supreme Court: Force for change?
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Critics say the court makeup is part of the problem, noting that most justices have been white men from privileged backgrounds. It's an issue, they argue, that can sometimes lead to paternalistic language, as in a 2006 abortion ruling that said "some women come to regret their choice to abort the infant life they once created and sustained."
7 photos: Supreme Court: Force for change?
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Many court critics have also questioned the wisdom of the 2010 Citizens United v. FEC decision, which opened the floodgates for campaign financing, allowing outside groups to spend record amounts. Millhiser said the ruling "gave billionaires a far-reaching right to corrupt American democracy."
7 photos: Supreme Court: Force for change?
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The Supreme Court ruled 5-4 that same-sex marriage is legal nationwide, a decision that profoundly affects the lives of millions of Americans. Some legal scholars see the court's movement on gay rights issues as proof that it is a force for change. But others say the court's role is largely the opposite.
7 photos: Supreme Court: Force for change?
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Another major ruling upheld Obamacare subsidies; had it gone the other way, millions could have lost their health care tax credits. Some legal scholars say the court's historical mission has been to block change, not validate it, by defending the status quo and ruling in favor of "wealth, power and privilege."
7 photos: Supreme Court: Force for change?
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They point to a 1918 ruling that struck down a federal law banning child labor, which left the practice in place for another two decades. The court said the law was "repugnant to the Constitution" because it violated states' rights. At the time, millions of children worked in dangerous mines, dank sweatshops and textile mills such as this one in Vermont in 1910.
7 photos: Supreme Court: Force for change?
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The court has been on the wrong side of history numerous times, says author Ian Millhiser of the Center for American Progress. It issued decisions that legitimized Jim Crow segregation, approved the forced sterilization of a woman against her will and forced Japanese-American citizens into internment camps during World War II.
7 photos: Supreme Court: Force for change?
Show Caption
4 of 7
Other scholars such as Clark Neily of the libertarian public interest law firm Institute for Justice defend the court, saying Brown v. Board of Education -- which led to school desegregation, including in Little Rock, Arkansas, in 1957 -- shows that the court is often "better than the other branches of government and society in general."
7 photos: Supreme Court: Force for change?
Show Caption
5 of 7
Critics say the court makeup is part of the problem, noting that most justices have been white men from privileged backgrounds. It's an issue, they argue, that can sometimes lead to paternalistic language, as in a 2006 abortion ruling that said "some women come to regret their choice to abort the infant life they once created and sustained."
7 photos: Supreme Court: Force for change?
Show Caption
6 of 7
Many court critics have also questioned the wisdom of the 2010 Citizens United v. FEC decision, which opened the floodgates for campaign financing, allowing outside groups to spend record amounts. Millhiser said the ruling "gave billionaires a far-reaching right to corrupt American democracy."
7 photos: Supreme Court: Force for change?
Show Caption
7 of 7
The Supreme Court ruled 5-4 that same-sex marriage is legal nationwide, a decision that profoundly affects the lives of millions of Americans. Some legal scholars see the court's movement on gay rights issues as proof that it is a force for change. But others say the court's role is largely the opposite.
7 photos: Supreme Court: Force for change?
Show Caption
1 of 7
Another major ruling upheld Obamacare subsidies; had it gone the other way, millions could have lost their health care tax credits. Some legal scholars say the court's historical mission has been to block change, not validate it, by defending the status quo and ruling in favor of "wealth, power and privilege."
7 photos: Supreme Court: Force for change?
Show Caption
2 of 7
They point to a 1918 ruling that struck down a federal law banning child labor, which left the practice in place for another two decades. The court said the law was "repugnant to the Constitution" because it violated states' rights. At the time, millions of children worked in dangerous mines, dank sweatshops and textile mills such as this one in Vermont in 1910.
7 photos: Supreme Court: Force for change?
Show Caption
3 of 7
The court has been on the wrong side of history numerous times, says author Ian Millhiser of the Center for American Progress. It issued decisions that legitimized Jim Crow segregation, approved the forced sterilization of a woman against her will and forced Japanese-American citizens into internment camps during World War II.
7 photos: Supreme Court: Force for change?
Show Caption
4 of 7
Scalia was questioning the attorney for the University of Texas, which is defending its use of race as a factor in admissions in the case before the court.
"There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less -- a slower-track school where they do well," Scalia said, according to the transcript. "One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas."
Supreme Court divided in affirmative action case
The attorney, Gregory G. Garre, tried to interject, but Scalia continued.
"They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them," Scalia said. "I'm just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer. And maybe some -- you know, when you take more, the number of blacks, really competent blacks, admitted to lesser schools, turns out to be less."
Garre said the court had already rejected that argument in the past.
Michigan affirmative action ban upheld
Michigan affirmative action ban upheld 02:49
Michigan's ban on affirmative action upheld by Supreme Court
"I don't think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they're going to inferior schools," Garre told Scalia.
The case, Fisher v. Texas, was heard for the second time on Wednesday, and all signs pointed again to a deeply divided court. The first time the case was heard, the justices made a narrow ruling that sent the case back down to the lower courts.
The arguments came as colleges across the country are confronting racial tensions and unrest over perceived unequal treatment of students.
Carrie Severino, chief counsel for the conservative Judicial Crisis Network and a former clerk to Justice Clarence Thomas, defended Scalia, saying he wasn't implying black students are inferior.
Opinion: What's wrong with affirmative action -- and why we need it
"What Justice Scalia is referring to is the 'mismatch theory' popularized by Stuart Taylor and Richard Sander in their book," she said. "The idea is that if a student is admitted to a school they are not academically prepared for then they will not perform up to their own potential. This is a theory -- contested of course -- but I don't want people to get the idea that it means that all black students are not as smart as white students, or even that they are not as well prepared across the board."
Scalia was apparently referencing a brief filed by Sander.
"Students with an interest in science who are admitted to a very competitive school via a large preference tend to drop out of the sciences at a much higher rate than do otherwise similar students who attend somewhat less competitive programs," the brief said. "Competition mismatch appears to be a major factor in the low rate at which African-American students become scientists, despite high levels of interest in the sciences."
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