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Although math appears to favor conservatives, outcome of Fisher case post-Scalia may hold some surprises

April 26th, 2016  |  Cynthia L. Hackerott

My previous blogs about the U.S. Supreme Court’s second grant of cert in Fisher v University of Texas at Austin (Dkt No 14-981) were posted prior to the death of Justice Antonin Scalia. His provocative statements during oral arguments in the case this past December, which referenced arguments questioning the utility of affirmative action, received much media attention. Since his passing, a legion of blogs have speculated about how the cases currently pending before the High Court will be impacted, especially given the political atmosphere which indicates that the vacancy left by the late Justice is not likely to be filled anytime soon. One important respect in which the Fisher II case differs from other pending cases is that it will likely be decided by seven JusticesElena Kagan has recused herself due to her involvement with the case when she was the U.S. Solicitor General, consequently negating the possibility of a tie vote.

Below is a listing of some notable blogs focusing on the possible results for Fisher II in light of the present make-up of the Court:

  • Insight Into Diversity notes that many experts do not anticipate that the overall outcome of the case will be any different now that Scalia is gone.
  • Among multiple blogs concluding that Justice Kennedy looks to be the swing vote, a post from Inside Higher Ed states that, either way, Kennedy’s vote will likely have a majority behind it.
  • A recent piece in Dorf on Law observes that, “[n]one of the four conservatives on the Court, including Justice Kennedy, has ever voted to uphold an affirmative action program.” In addition, it includes an insightful discussion of Justice Scalia’s views on the issue.
  • A post at the Chronicle of Higher Education also notes that “the math still seems to favor the court’s conservative wing,” and ponders the landscape for future affirmative action cases in a post-Scalia Court.
  • The Social Sciences Research Network posts a paper by Vinay Harpalani of Savannah Law School, also published in the University of Pennsylvania Law Review, that provides a breakdown of various possible scenarios and points out that Fisher II could actually turn out worse for affirmative action proponents than it would have with Justice Scalia on the Court.
  • Lastly, an article in Harvard’s student newspaper, The Harvard Crimson, notes that the outcome in Fisher II could affect private institutions such as Harvard because Title VI of the Civil Rights Act of 1964 requires institutions that accept federal funding to follow government guidelines on matters of civil rights. It also reports that a lawsuit currently pending in federal district court in Massachusetts (Students for Fair Admissions, Inc v President & Fellows of Harvard College, DMass, dkt no 14-14176)which claims the Ivy League school discriminates against Asian American applicants through its use of race-based affirmative actionis on hold pending results of the Fisher II case. A similar suit has been filed in federal district court in North Carolina (Students for Fair Admissions, Inc v University of North Carolina, MDNC, dkt no 14-954).