With the recent death of Justice Antonin Scalia, the U.S. Supreme Court would seemingly be at a 4-4 impasse on many charged cases. However, in Fisher v. University of Texas at Austin II — the pending case about race-conscious university admissions at the University of Texas at Austin (UT), Justice Scalia’s death actually eliminates the possibility of a tie, because Justice Elena Kagan recused herself from the case. Seven Justices will now decide the fate of Fisher II, with Justice Anthony Kennedy in his usual role of swing vote. If Kennedy votes to strike down UT’s race-conscious admissions policy, then Scalia’s absence will not matter much. Under that scenario, Kennedy’s opinion would control Fisher II either with Scalia (5-3 vote, commanding a majority on the Court) or without him (4-3 majority on the Court). Either of these would reverse the 5th Circuit and set precedent. However, if Kennedy votes to uphold UT’s policy, then Scalia’s absence matters, because rather than a 4-4 tie with no precedential value, Kennedy could write a 4-3 majority opinion. Moreover, because UT’s policy is more modest than the University of Michigan Law School policy upheld in Grutter v. Bollinger (2003), Kennedy could actually uphold it and still further limit the scope of constitutionally acceptable race-conscious admissions policies. If that happens, proponents of affirmative action will have to wonder whether to call it victory or defeat.
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