The most closely watched court case in higher education over the last few years has been Fisher v. University of Texas, in which Abigail Fisher, a white woman, sued UT claiming that she was improperly denied admission to the university as a result of its affirmative action policies.
The first time Fisher made it to the Supreme Court, in the 2012-13 session, the justices declined to rule on the question of whether affirmative action in college admissions is constitutional. Instead, in an opinion written by Justice Anthony Kennedy, the Court found that the Court of Appeals had applied the wrong constitutional standard to the case, and sent the dispute back to them for reconsideration.
Fisher returned to the Supreme Court last fall, with many Court observers predicting that a majority of the justices would find campus affirmative action unconstitutional. But at oral arguments in December, more than one justice — including Kennedy, the presumed swing vote — suggested that the Court might not have enough information about the specifics of the Texas plan to rule on it conclusively.
Which brings us to the Court’s new vacancy. Justice Scalia’s vote in Fisher has never been in doubt — he declared in a concurrence to the original ruling that he considered affirmative action unconstitutional. But his death is unlikely to change the math immediately, since Justice Kagan, a supporter of affirmative action, is not participating in this case. (As Obama’s Solicitor General, she had responsibility for the administration’s briefs in the run-up to Fisher‘s first appearance before the Court.) If Kennedy and the more conservative justices all vote to overturn affirmative action, and the Court’s liberals all vote the other way, then Scalia’s absence merely shifts the tally in the conservatives’ victory from 5-3 to 4-3.
That only applies, though, if the Court reaches a final decision on the merits now. If they send the case back for further consideration at a lower level again, Scalia’s replacement will presumably be seated in time for the next round. And Scalia’s may nudge Kennedy toward that approach — in general, the justices prefer not to make important decisions short-handed, and Scalia’s absence means that on this issue the Court is down not just one vote, but two.
If the Court sends Fisher back to the lower courts, then, and if they take the case up again when they’re at full strength, and if Scalia’s replacement is appointed by Obama (or a Democratic winner of the 2016 election), this term’s anticipated 4-3 vote to overturn affirmative action will likely turn into a 4-4 tie.
And in the case of such a tie, the lower court’s decision would stand — but it wouldn’t set precedent for the rest of the country. The ultimate fate of campus affirmative action would be left unresolved … until a subsequent case arose in the context of another university’s admissions policies. And if that happened, Justice Kagan would in all likelihood be free to participate, changing the 4-4 Fisher tie to a 5-4 victory for affirmative action.
Unless, of course, there’s another vacancy on the Court before then.