Scalia's death probably won't affect Fisher case, observers say

Justice Antonin Scalia's death has opened up questions about the future of affirmative action cases

The recent death of U.S. Supreme Court Justice Antonin Scalia is unlikely to affect the outcome of Fisher v. University of Texas (UT) at Austin, Eric Hoover and Eric Kelderman report for the Chronicle of Higher Education.

What happens when a justice dies?

When a justice dies, votes he or she has cast that have not been publicly decided are voided, according to Thomas Goldstein, a lawyer who writes for the SCOTUSblog.

In some education-related cases, Scalia was expected to be the swing vote in a 5-4 decision—meaning that his absence puts those cases in a precarious position.

According to Mark Rahdert, a law professor at Temple University, the justices have several options in cases where they have already heard oral arguments:

  • Delay those cases until obtaining a new ninth member, then hold a second set of oral arguments;
  • Rule a case had been "improvidently granted" and revert to a lower court's ruling; or
  • Move forward, with any ties resulting in the Supreme Court affirming the lower court decision.

William Thro, general counsel of the University of Kentucky, says the high court will probably hold off on the cases related to higher education where Scalia's absence would likely mean a 4-4 tie.

But Justice Elena Kagan recused herself from Fisher, leaving seven judges to decide the case. Before Scalia's death, the court was expected to rule 5-3 against the university, and some legal experts now predict a 4-3 ruling against UT.

"As consequential as Justice Scalia's death may be to some cases, it's highly unlikely that it will have a significant impact on the Fisher case," says Arthur Coleman, a former deputy assistant secretary in the Education Department's Office for Civil Rights.

Michael Olivas, director of the Institute for Higher Education Law and Governance at the University of Houston, says it is difficult to predict how the justices will rule because of Fisher's complex procedural history. However, he says that because the case's oral arguments took place so recently, it is unlikely that draft opinions have begun to circulate among the justices, which have the potential to affect their views.

Roger Clegg, president and general counsel of the Center for Equal Opportunity, which joined a brief filed by the Pacific Legal Foundation in support of Abigail Fisher, also believes that the court will rule against UT. However, he notes, "The only caveat is that justices do have a role besides just voting.

There's also how persuasive they are with one another, and Justice Scalia won't be there to argue with other justices as they go through the writing of the different opinions."

What does the future of affirmative action look like?

Scalia's absence may not have a significant effect on the ruling in Fisher, but the loss of a conservative opponent of race-conscious admissions has the potential to shape future cases involving affirmative action. "There's no doubt that the lightning rod on this set of issues is gone," Coleman says.

Jeffrey Rosen, a professor at George Washington University's law school, notes, "Justice Scalia was willing to go much farther than Justice Kennedy in imposing a color-blind rule across the board." Rosen adds, "[Scalia] had very distinctive views of the Constitution and color-blindness" (Hoover/Kelderman, Chronicle of Higher Education, 2/14).

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