Scalia’s Death May Affect Court’s Affirmative Action Ruling

The death on Saturday of Antonin Scalia, the sharp-tongued justice who shaped constitutional debates for nearly 30 years, could end up shifting the Supreme Court’s ideological balance. But his absence is unlikely to affect the highly anticipated ruling in Fisher v. University of Texas at Austin, the pending legal challenge to race-conscious college admissions policies. In short, the math still seems to favor the court’s conservative wing.

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In 2008 Abigail N. Fisher, who is white, sued the university, asserting she had been unfairly denied admission because of the flagship campus’s race-conscious admissions policy. Although the U.S. Court of Appeals for the Fifth Circuit ruled in Austin’s favor, the Supreme Court later ruled that the lower court had not sufficiently scrutinized the policy. After the appeals court again said the university’s policy could stand, the high court took up the case a second time. The justices heard oral arguments in December–during which Justice Scalia sparked outrage with comments on African American students–and the court’s ruling in the case, No. 14-981, is expected later this year.

What happens to pending rulings when a justice dies? Votes he or she has cast in cases that have not been publicly decided become void, according to Thomas C. Goldstein, a lawyer who publishes the widely read Scotusblog. In a post published on Saturday, he wrote: “If Justice Scalia’s vote was not necessary to the outcome–for example, if he was in the dissent or if the majority included more than five justices–then the case will still be decided, only by an eight-member court.”

The Fisher case was already down one member. Justice Elena Kagan, representing the court’s liberal wing, had recused herself because, as U.S. solicitor general, she was involved in the Obama administration’s submission of a brief supporting the University of Texas. In her absence, the court was widely expected to rule 5 to 3, against the university, with Justice Anthony M. Kennedy joining his conservative counterparts.

Read more at Chronicle of Higher Education.