What Antonin Scalia’s Death May Mean for the ‘Fisher’ Affirmative-Action Case

The death of the longtime Supreme Court justice and conservative stalwart Antonin Scalia has widespread ramifications for American politics and policy. For higher education, the most immediately apparent consequence is for Fisher v. University of Texas at Austin, the landmark legal challenge to race-conscious admissions that is pending before the court.

A short history of the case: Abigail N. Fisher sued the university in 2008, asserting she had been unfairly denied admission to the university because of the flagship campus’s race-conscious admissions policy. In 2013 the Supreme Court ruled that the lower court — the U.S. Court of Appeals for the Fifth Circuit — had not sufficiently scrutinized the university’s policy in its decision that found in Austin’s favor. After the appeals court again ruled that the policy could stand, the case was appealed to the high court a second time. The justices heard oral arguments in December.

In those arguments Justice Scalia stood out as a vehement critic of race-based admissions, suggesting — controversially — that underprepared minority students would fare better at a “slower-track school,” not a prestigious institution like the University of Texas.

With Justice Scalia’s death, many cases pending before the Supreme Court now slide from a perceived 5-to-4 advantage for the conservative wing of the court to a 4-to-4 split. But Fisher is different. Justice Elena Kagan has recused herself from the case because, as U.S. solicitor general, she was involved in the Obama administration’s submission of a brief in favor of the University of Texas’ position. That means the expected stance of the court is 4 to 3 in favor of the conservative wing — and against Austin’s policy — with Justice Anthony M. Kennedy serving as the swing vote.

Justice Kennedy wrote the court’s ruling that sent the case back to the appeals court. In the oral arguments in December, he expressed frustration that the case was being heard again and signaled dissatisfaction with the amount of new information available to the justices.

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