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 Courtâ€™s ideological balance. But his absence is unlikely to affect the highly anticipated ruling inÂ 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 courtâ€™s conservative wing.
In 2008 Abigail N. Fisher, who is white,Â sued the university,Â asserting she had been unfairly denied admission because of the flagship campusâ€™s race-conscious admissions policy. Although the U.S. Court of Appeals for the Fifth CircuitÂ ruled in Austinâ€™s favor,Â the Supreme CourtÂ later ruled that the lower court had not sufficiently scrutinized the policy. After the appeals court againÂ said the universityâ€™s policy could stand,Â the high court took up the caseÂ a second time. The justices heard oral argumentsÂ in Decemberâ€”during which Justice ScaliaÂ sparked outrageÂ with comments on African American studentsâ€”and the courtâ€™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,Â he wrote: â€œIf Justice Scaliaâ€™s vote was not necessary to the outcomeâ€”for example, if he was in the dissent or if the majority included more than five justicesâ€”then the case will still be decided, only by an eight-member court.â€
TheÂ FisherÂ case was already down one member. Justice Elena Kagan, representing the courtâ€™s liberal wing, had recused herself because, as U.S. solicitor general, she was involved in the Obama administrationâ€™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.