(Photo: Pavel Ivanov / Flickr)
The recent death of Justice Antonin Scalia on February 13, 2016, leaves the U.S. Supreme Court in ideological equipoise. The Court is seemingly at a 4–4 impasse on many charged cases until Justice Scalia is replaced. However, the immediate effect of Justice Scalia’s absence is not as simple in all cases. For example, in Fisher v. University of Texas at Austin (Fisher II)—the pending case about race‐conscious university admissions at the University of Texas at Austin (UT)—one might think that Justice Scalia’s absence would yield a ruling more favorable to proponents of affirmative action. But Fisher II could actually turn out worse for affirmative action proponents than it would have with Justice Scalia on the Court. And ironically, this may happen if Justice Anthony Kennedy votes with the liberal Justices to uphold UT’s race‐conscious policy.
The reasons for this irony are threefold. First, Justice Elena Kagan recused herself from Fisher, due to her role in earlier phases of the case when she was Solicitor General under the Obama Administration. With Justice Scalia’s death, seven Justices will decide Fisher II—eliminating, rather than creating, the possibility of a tie. Because Justice Kennedy is still the Court’s swing vote, his view will probably be outcome‐determinative in Fisher II. Justice Kennedy is likely to write a controlling opinion, as has often been the case in the past decade —but this time by a 4–3 vote. Assuming a ruling on the merits, his Fisher II opinion will become Supreme Court precedent and apply to the entire nation.
Second, with Justice Kagan recused, the effect of Justice Scalia’s absence on Fisher II actually depends on Justice Kennedy’s vote. If Justice Kennedy votes to strike down UT’s race‐conscious admissions policy, then Justice Scalia’s absence does not matter as much. Under that scenario, Justice Kennedy’s opinion would control Fisher II either with Scalia (by a 5–3 majority) or without him (by a 4–3 majority). Either of these would reverse the Fifth Circuit and set precedent.
But if Justice Kennedy votes to uphold UT’s policy, Justice Scalia’s absence comes into play. With Justice Scalia still on the Court, an affirmance by Kennedy would have led to a 4–4 tie in Fisher II, thereby passively upholding the decision of the Fifth Circuit without setting any precedent. Since Justice Scalia is gone, however, a Justice Kennedy affirmance would now control Fisher II and set precedent.
Third, Fisher II itself is unusual for an affirmative action case. The main issue is not the implementation of UT’s race‐conscious policy, but whether UT needs that policy at all. Petitioner Abigail Noel Fisher contends that UT attains its compelling interest in diversity with Texas’s Top Ten Percent Law (TTPL) alone. The TTPL, which grants automatic admission to UT for top Texas public high school students, accounts for three‐quarters of UT’s admitted class on a race‐neutral basis. UT’s use of race applies only to the remainder. Both parties in Fisher conceded that UT’s race‐conscious policy is consistent with the Supreme Court’s Grutter v. Bollinger precedent. The parties also conceded that UT’s policy is actually more modest in scope than the University of Michigan Law School policy upheld in Grutter. Consequently, Justice Kennedy could actually vote to affirm UT’s modest policy and still narrow the scope of Grutter, curbing affirmative action in university admissions in the process. With these considerations in mind, this Essay turns to examine the possible outcomes in Fisher II and their impact on affirmative action more broadly.