On Thursday, the US Supreme Court upheld race based decisions in college admissions in the landmark Fisher v. University of Texas at Austin (UT).
The court ruled 4-3 in the university’s favour, with Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor delivering the opinion of the court, and Justices Clarence Thomas, Samuel Alito, and John Roberts dissenting.
Justice Elena Kagan recused herself from the case.
Perhaps one of the most important justices for the outcome of the case was not in the bench for the decision. Antonin Scalia, a staunch opponent of race-based admissions, died in February, aged 79. Along with Kagan’s recusal, Scalia’s death removed the possibility of a 4-4 split decision.
The UT case centered on Abigail Fisher, a white woman denied admission to Texas’ flagship public university in 2008, who claimed her race played a factor in her rejection. She argued that the university denied her admission in favour of less-qualified black and Hispanic students and that her constitutional right to equal protection was violated.
For its part, UT argued that its “holistic” admissions plan did not make race the sole factor but only one component of the contributions an applicant would bring to campus.
When the case was first heard in 2013, the justices originally looked to vote 5-3 against Texas. But the court deferred that decision and voted a compromise decision instead, Business Insider’s Peter Jacobs wrote, citing Legal journalist Joan Biskupic’s 2014 book on Justice Sonia Sotomayor, “Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice.”
The case was then sent back down to the lower courts to be reevaluated, with the understanding that the Supreme Court would most likely rehear the case.
After Scalia’s death, the justices were forced to decide the case without the possibility of a split with seven justices on the bench. Perhaps surprisingly, Justice Kennedy emerged as the unlikely hero of affirmative action, voting for the first time to uphold an affirmative-action program.
Aside from allowing a possible split decision, Kent Greenfield, a law professor at Boston College Law School, thinks Scalia’s presence may have altered Kennedy’s decision.
“If Scalia had been on the court, [Kennedy] might have been persuaded to write the case differently,” Greenfield told Business Insider via email.
“This is a case in which the court could have been different with Scalia, in the sense that it might have been 4 to 4, but Scalia is such a powerful advocate for colour-blindness in the law that one could imagine Scalia having some impact on Kennedy’s views,” he said, further stating the impact of Scalia’s death on the case.
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