Antonin Scalia’s Death Probably Won’t Affect ‘Fisher,’ but It Could Change the Future of Affirmative Action

February 14, 2016

Jim Mone, Associated Press
Antonin Scalia, who died on Saturday, was perhaps the Supreme Court's most vociferous opponent of race-conscious admissions policies. With his passing, said one affirmative-action expert, "there’s no doubt that the lightning rod on this set of issues is gone."
The death on Saturday of Antonin Scalia, the sharp-tongued justice who shaped constitutional debates for nearly 30 years, could end up shifting the Supreme Court’s ideological balance. But his absence is unlikely to affect the highly anticipated ruling in Fisher v. University of Texas at Austin, the pending legal challenge to race-conscious college-admissions policies. In short, the math still seems to favor the court’s conservative wing.

In 2008 Abigail N. Fisher, who is white, sued the university, asserting she had been unfairly denied admission because of the flagship campus’s race-conscious admissions policy. Although the U.S. Court of Appeals for the Fifth Circuit ruled in Austin’s favor, the Supreme Court later ruled that the lower court had not sufficiently scrutinized the policy. After the appeals court again said the university’s policy could stand, the high court took up the case a second time. The justices heard oral arguments in December — during which Justice Scalia sparked outrage with comments on African-American students — and the court’s ruling in the case, No. 14-981, is expected later this year.

What happens to pending rulings when a justice dies? Votes he or she has cast in cases that have not been publicly decided become void, according to Thomas C. Goldstein, a lawyer who publishes the widely read Scotusblog. In a post published on Saturday, he wrote: "If Justice Scalia’s vote was not necessary to the outcome — for example, if he was in the dissent or if the majority included more than five justices — then the case will still be decided, only by an eight-member court."

Scalia’s Death Could Leave Other Key Cases in Limbo

In some other cases that affect academe, Justice Antonin Scalia could have been the difference between a 5-to-4 vote and a deadlock. What happens in those cases?

The justices have a few options: 

Put cases on hold: They could delay those cases until they have a new ninth member and then hold a second set of oral arguments, said Mark C. Rahdert, a law professor at Temple. Or they could move forward, in which case a tie would result in the Supreme Court's affirming the lower-court decision, but without giving it the same legal precedent granted to other rulings of the high court.

Special ruling: Another option would be to rule that the cases had been "improvidently granted," meaning that the court would acknowledge that it should not have accepted the cases on appeal in the first place, Mr. Rahdert said.

What to do about likely 4-4 splits? William E. Thro, general counsel of the University of Kentucky, said it’s likely the court could hold off on several other cases that have an impact on higher education because Justice Scalia’s death leaves a likely 4-to-4 tie. Among them is Friedrichs v. California Teachers Association, in which a group of teachers argues that mandatory union fees violate their right to free speech.

Another controversial case that could be held over is a challenge to the Affordable Care Act’s mandate that employers provide access to contraceptives under their health-insurance coverage. Several religious colleges have joined the effort to undo the mandate despite changes the Obama administration’s has made in the rule. That case will now probably end in a 4-to-4 split, Mr. Thro said, meaning it’s unlikely there will be a ruling this term.

The Fisher case was already down one member. Justice Elena Kagan, representing the court’s liberal wing, had recused herself because, as U.S. solicitor general, she was involved in the Obama administration’s submission of a brief supporting the University of Texas. In her absence, the court was widely expected to rule, 5 to 3, against the university, with Justice Anthony M. Kennedy joining his conservative counterparts.

Some legal experts said on Sunday that they now foresee a 4-to-3 ruling against the university. "The simple bottom line is, as consequential as Justice Scalia’s death may be to some cases, it’s highly unlikely that it will have a significant impact on the Fisher case," said Arthur L. Coleman, a former deputy assistant secretary in the U.S. Department of Education’s Office for Civil Rights.

Mark C. Rahdert, a professor of law at Temple University, agreed that the court was likely to rule in Ms. Fisher’s favor. He cited Justice Kennedy’s past position questioning the need to increase racial diversity on the Austin campus. "I foresee the prospect of Fisher being decided this term because the votes are there," he said.

Michael A. Olivas, director of the Institute for Higher Education Law and Governance at the University of Houston, said the case's complicated procedural history makes it difficult to predict how the justices will rule. On Fisher's first trip to the Supreme Court, the justices voted, 7 to 1, to send the case back to the appeals court without deciding on the merits of the university’s enrollment plan, he said. There are questions about whether Ms. Fisher even has legal standing to sue the university, he said, since she has already gone on to graduate from Louisiana State University at Baton Rouge.

Because the oral arguments in the case took place so recently, it seems unlikely that draft opinions have already started circulating among the justices — a process that can result in shifting positions, said Mr. Olivas, who also serves as interim president of the University of Houston-Downtown.

'A Role Besides Voting'

That said, the loss of a passionate affirmative-action critic might have a much greater effect on the court’s decisions in future cases. "That’s the really interesting question," said Mr. Coleman, a managing partner and co-founder of EducationCounsel LLC. Although other justices have criticized race-conscious admissions policies, he said, "there’s no doubt that the lightning rod on this set of issues is gone."

That saddened Roger Clegg, president and general counsel of the Center for Equal Opportunity, which opposes race-conscious admissions policies. "It’s depressing," he said. "How depressing will depend on who replaces him, but it’s quite unlikely that we’ll have somebody who can fill those shoes."

Understanding 'Fisher' — and Affirmative Action

What will tomorrow's college admissions look like? Campus experts weren't certain after the Supreme Court's first ruling in Fisher v. University of Texas at Austin, in 2013Nor are they certain now.

But there's much to say about the future of race in admissions. Read a collection of articles from The Chronicle's archives that puts Fisher in a broader campus context.

Mr. Clegg’s organization joined a brief filed by the Pacific Legal Foundation in support of Ms. Fisher. He doesn’t believe that Justice Scalia’s absence will affect the court’s ruling — which, he predicted, will deliver a loss to Texas and weaken the foundation of race-conscious admissions programs. "The only caveat is that justices do have a role besides just voting," he said. "There’s also how persuasive they are with one another, and Justice Scalia won’t be there to argue with other justices as they go through the writing of the different opinions."

Jeffrey Rosen, a professor at George Washington University's law school, doesn’t sense doom for race-conscious policies in the Fisher case. "Justice Scalia was willing to go much farther than Justice Kennedy in imposing a color-blind rule across the board," he said. "He had very distinctive views of the Constitution and color-blindness."

Justice Scalia leaves behind many forceful criticisms of race-based admissions programs. Perhaps none is more revealing than a 1979 essay published in the Washington University Law Quarterly, which Mr. Rosen described in a 1993 article in The New Republic. In the essay, the future justice describes his contempt for the notion that relatively recent immigrants should somehow make amends for past oppression of African-Americans. Describing how his father had come to the United States from Sicily as a teenager, he wrote: "Not only had he never profited from the sweat of any black man's brow, I don't think he had ever seen a black man." In the piece he described himself as an "anti-hero" in the debate over race-conscious policies.

Exactly what the departure of the influential and polarizing justice means for the Supreme Court — and higher education — is not yet clear. Yet Mr. Rosen suggested one thing is certain: "how significant his replacement will be in determining the future of affirmative action."

Eric Hoover writes about admissions trends, enrollment-management challenges, and the meaning of Animal House, among other issues. He’s on Twitter @erichoov, and his email address is

Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at