With the unexpected death of Supreme Court Justice Antonin Scalia, marking only the third time in recent memory an active justice has died, a firestorm of controversy and has erupted surrounding who his possible successor may be as well as the fate of current cases before the Court. Perhaps the most notable of these cases is the current affirmative action case Fisher v. University of Texas II, which concerns the University of Texas’ affirmative action program.

The preceding affirmative action case, Fisher v. University of Texas, was an appeal brought by Abigail Fisher in 2013 after she lost her challenge to race-based affirmative action in the Fifth Circuit. The Court remanded her case back to the Fifth Circuit on the grounds that the Fifth Circuit had failed to properly exercise strict scrutiny in its analysis of the University of Texas’ policy, effectively delaying any new precedent in affirmative action law. Justice Ruth Bader Ginsburg wrote the lone dissenting opinion, and Justice Elena Kagan recused herself, as she was Solicitor General when the Department of Justice filed an amicus brief regarding the case during its hearing in the Fifth Circuit. Fisher is now appealing the Fifth Court’s second decision, claiming that affirmative action does not pass strict scrutiny and is thus unconstitutional.

Fisher II, as the case is known, has already received significant media attention, even before a decision has been made. Asian-American advocacy groups have already used the case as a platform to debate the impact of affirmative action on Asian-American applicants. In addition, Scalia himself drew widespread criticism for one of his remarks during oral arguments in which he questioned whether minority students admitted to elite universities under affirmative action policies would be able to perform up to par with their peers, echoing a similar statement Justice Clarence Thomas made in his opinion in the 2003 landmark affirmative action case Grutter v. Bollinger.

In addition to being hotly divisive, this case also has significant legal implications. Initially, since Kagan has recused herself again, the loss of one voting liberal justice meant that there were three typically liberal justices and five conservative justices deciding the case. A defection by the typical “swing” Justice Anthony Kennedy would tie the case 4-4, meaning that the lower court’s ruling would be upheld, but the case would not set a precedent for lower courts. This would keep the constitutional question of affirmative action’s legality a proverbial open book – there would not be a significant national impact.

With the loss of Scalia, however, this calculus has changed. With the subtraction of both one conservative justice and one liberal justice as well as assuming Kennedy to be the “swing” vote, the ruling will almost certainly become a 4-3 decision one way or the other with Kennedy casting the determining vote. A vote with the liberal bloc would uphold the University of Texas’ affirmative action plan, which admits the top ten percent in terms of GPA from every high school and then determines the remaining spots using holistic review as established in Grutter. A vote with the conservative bloc would strike down the University of Texas’ combination of the two, accepting the premise that use of race in college admissions is a violation of the Equal Protection Clause of the Fourteenth Amendment. Such a ruling would be a disastrous blow to proponents of race-based affirmative action.

As the Court stands now, a constitutional ruling one way or the other is inevitable barring another remanding. During oral argument, Kennedy did express skepticism about the fact-finding that had been done before bringing the case to the Court once more, even going as far as to question whether an additional remand was necessary to resolve the case. However, given the years that have passed since Fisher I, a second remand from the Court is unlikely; it would only be a delaying tactic to avoid a final ruling.

Scalia’s death has further raised the stakes for affirmative action, and once again, Justice Kennedy, the deciding vote in many landmark cases including last year’s Obergefell v. Hodges, which legalized gay marriage nationwide, is expected to have the last say in the matter. As for what finally happens, the nation now may only hold its breath and wait.

Image Credit: United States Mission Geneva/Wikimedia

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