Sometimes it seems like it’s Anthony Kennedy’s Constitution; the rest of us just have to live with it.
The perpetual swing-vote justice seemed to be dithering a bit during today’s oral arguments concerning the perpetually undecided case of Fisher v. University of Texas. But you can’t necessarily blame him. Last time it was before the Court, he complained lower courts should resolve some key factual questions, clearly signaling he thought a full fact-finding trial was in order. But back it came without such a trial after summary judgments in the lower courts. Justices Scalia, Alito, Thomas, and probably Roberts don’t seem to need more facts about UT’s admissions program before adjudging it as unconstitutionally race-conscious. Justices Ginsberg, Breyer, and Sotomayor seem equally inclined to uphold the Texas system. And that leads to the other big complication, as explained by SCOTUSblog’s Lyle Denniston:
Justice Elena Kagan, because of her past involvement with this very case while a government lawyer, is not taking part, and a shortened bench might not want to act so boldly …
If the Court, after weeks of private deliberation, ultimately cannot assemble a clear five-justice majority among the eight who will decide, that could lead to a simple order by an evenly divided Court with no opinion but with the practical effect of upholding the Texas program as is. That would provide no guidance for other public colleges and universities. Because no faction among the justices would seem to want that, there is likely to be a strenuous effort to find a common ground — as there was last time, two years ago, when a seven-to-one decision returned the case to lower courts for another look, with modest new guidance.