The Chronicle of Higher Education
By Andy Thomason
June 23, 2016
To many observers, the Supreme Court’s 4-to-3 decision on Thursday that upheld the use of race-conscious admissions at the University of Texas at Austin came as a surprise.
Even inside the court, it seems: “Something strange has happened,” wrote Justice Samuel A. Alito in the first line of his dissent, “since our prior decision in this case.” In 2013 the court ruled that a lower court, the U.S. Court of Appeals for the Fifth Circuit, had not applied enough scrutiny to Austin’s admissions program, and ordered it to revisit the case. The appeals court then effectively affirmed its prior decision. That judgment was appealed once again to the Supreme Court, which heard arguments in December.
Some Supreme Court cases were expected to deadlock after Justice Antonin Scalia, a vocal critic of affirmative action in admissions, died in February. But his death was not expected to alter the outcome of the Texas case because Justice Elena Kagan had recused herself. During her time as U.S. solicitor general, Justice Kagan had been involved with the Obama administration’s submission of a brief supporting the university. Her recusal left just seven justices to decide the case.
Many observers expected a 4-to-3 decision striking down the Texas policy, with Justice Anthony M. Kennedy serving as the swing vote. Instead, he wrote the majority opinion in the case, Fisher v. University of Texas at Austin, No. 14-981, which upheld the policy.