Justice Scalia’s Death May Have Implications for Affirmative Action

Beyond the immediate repercussions for the U.S. legal system following the sudden passing of U.S. Supreme Court Justice Antonin Scalia on February 13, his death will likely have a pervasive effect on the outcome of some highly contested Supreme Court cases this year.

One such case is Fisher v. University of Texas at Austin in which the fate of affirmative action could be decided. After hearing the case for the second time this session, the court is expected to deliver a decision before the end of this term.

With Scalia — who was known as a scathing critic of affirmative action — now gone, many experts agree that the balance in this case will likely shift.

“What Scalia’s death does is it takes away the most vocal and influential voice on the right from the court,” University of Texas History Professor Jeremi Suri said in a statement. “It was likely that Scalia was going to lead the charge to try to restrict any affirmative action provisions within the University of Texas’ admissions policies.”

Yet, while Scalia may have convinced his colleagues to support his position, many do not anticipate that the overall outcome of the case will be any different with him now gone.

Justice Elana Kagan recused herself from this case, having previously worked on it as solicitor general of the U.S., leaving just seven justices — three liberal and four conservative — to decide on this dispute. Without her vote and with Justice Anthony Kennedy often playing the role of the wildcard, some consider the decision to be a toss up.

“Anthony Kennedy is likely going to vote for the majority in this, which would be a 4-3 majority to do something to affirmative action,” Trevor Burrus, an expert on the Supreme Court from libertarian think tank the Cato Institute, said in a statement. “Now the question is what will be done?”

However, many experts believe Kennedy will vote in favor of the conservative majority, which would mean a vote against the university.

The case, which the Supreme Court last heard in 2013, involves Abigail Fisher, a white student who challenged the University of Texas’ policy of considering race in undergraduate admissions after she was denied admission in fall 2008. Burrus said the court’s ruling could either affect only the University of Texas, demand more transparency from universities nationwide on their affirmative action policies, or outright ban the use of affirmative action in admissions processes.

While Burrus believes the latter is the least likely outcome, he said it is still possible that the Supreme Court would deem affirmative action unconstitutional.

While no one has any definitive knowledge of what will come of the Fisher v. University of Texas at Austin case, it is obvious that Scalia’s absence will have an impact.

“This clearly changes everything,” Burrus said.