Alito appeared to reference Elizabeth Warren when he asked about 'family lore' on Native American ancestry during Supreme Court affirmative action case

• Samuel Alito appeared to reference Sen. Elizabeth Warren during the Supreme Court's affirmative action case.
• The justice asked whether someone who identifies as Indigenous based on "family lore" could include that on a college application.

Supreme Court Justice Samuel Alito appears to reference Massachusetts Sen. Elizabeth Warren in a line of questioning about Native American ancestry as the Supreme Court hears a major case on affirmative action.

Oral arguments began Monday in a case to determine whether colleges can continue to take race into consideration in the admissions process.

Alito asked North Carolina Solicitor General Ryan Park — who is defending affirmative action policies at the University of North Carolina — what is preventing students from claiming heritage they don't have.

"It's family lore that we have an ancestor who was an American Indian," Alito offered.

Park agreed that in that instance, it would not make sense for a student to say they are of American Indian heritage.

Alito replied: "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 conceded, agreeing that it is unlikely that the student was telling the truth.

Alito appeared to be referring to Warren, who identified herself as an American Indian on a Texas registration card for the State Bar of Texas and in documents while working at Harvard, according to the Washington Post.

Warren made a public apology in 2019 during her run for president after she took a DNA test to prove Indigenous ancestry.

Alito challenges affirmative action

During oral arguments in the affirmative action case at the Supreme Court on Monday, Alito pressed Park on the justification for "lumping together" students from similar racial backgrounds together by having them check a box.

"What is the justification for lumping together students whose families came from Afghanistan with someone with students whose families came from China?" Alito asked.

Park responded that he agreed that it would be a "strange rule," but noted that this is not the rule the Supreme Court has established and upheld.

"Why do you have them check a box? What do you learn from a mere checking of a box?" Alito shot back.

Park noted that this gives information about where the student came from and gives context to their lives.

"In the context of everything else we know about an applicant, it can matter, not always, and there's no automatic plus factor that's given, but it can matter what an applicant's racial background is," Park explained.

Alito then asked at what point a student falls into the category of an underrepresented community, pushing Park to give a definitive answer as to how many relatives a student must have with that background to get the plus factor in the admissions process.