The death of Supreme Court Associate Justice Antonin Scalia on Saturday has further complicated Abigail Fisher v. University of Texas, which could decide the fate of affirmative action in college admissions.
The Supreme Court will now come to a decision with only seven members, since Associate Justice Elena Kagan recused herself from the case, or delay the decision until Scalia’s replacement has been appointed.
The case began in 2008 when Fisher filed a lawsuit against the University, claiming she had been denied admission in part because she was white — in violation of her rights under the 14th Amendment. The University has refuted this claim, saying its limited use of race in admissions is clearly constitutional, under precedent the Supreme Court set in the 2003 case Grutter v. Bollinger. University lawyers have also argued that Fisher’s application was not strong enough to merit admission, regardless of her ethnicity.
The case reached the Supreme Court in 2012, and was sent back to the 5th Circuit for further scrutiny. In December, the Supreme Court heard oral arguments in the Fisher case for the second time.
UT law professor Sanford Levinson said he believes it is possible the Supreme Court will hold over the decision until Scalia’s replacement is confirmed. Otherwise, the justices run the risk of issuing a 4–3 decision, which might be viewed with skepticism by the public, although it would still be legally binding.
“I think there would be some criticism for that, simply because there’s no need for the court to decide this year rather than next year,” Levinson said. “There’s no reason to believe that justice delayed is justice denied in this particular case.”
Even delaying the decision until eight members can vote would not guarantee a traditional outcome — with eight members, the justices’ votes might result in a tie. If so, the case would automatically revert to the ruling of the lower court. In July 2014, the Fifth Circuit Court of Appeals ruled in favor of the University, concluding its affirmative action program was constitutional.
“A 4–4 decision is really no decision since it leaves standing the decision of the lower court, so I would imagine that them putting it off is unlikely,” said UT law professor Lino Graglia.
If the justices issue a ruling despite their missing member, it is possible they will rule the same way they would have even if Scalia had not died, according to UT law professor H.W. Perry Jr. Although internal Supreme Court deliberations are not public, Scalia’s record on previous affirmative action is well established, as are the records of his colleagues.
Associate Justice Anthony Kennedy has ruled against affirmative actions before, and is likely to do so again, Perry said.
“Unlike some cases, my guess is that in this case, the presence or absence of Justice Scalia is not of particular importance,” Perry said.