An introduction to Constitutional Law 100 Supreme Court cases everyone should know

Randy E. Barnett & Josh Blackman

Fisher II was argued on December 9, 2015, before eight Justices. (Justice Kagan once again recused.) Justice Scalia seemed like a solid vote to rule against the University of Texas. Likewise, Chief Justice Roberts, along with Justices Thomas and Alito, have consistently found that affirmative-action programs were unconstitutional. During oral argument, Justices Ginsburg, Breyer, and Sotomayor seemed to support the constitutionality of the university’s policy. That break- down left Justice Kennedy as the deciding vote. But with only eight Justices, at best Justice Kennedy’s fourth vote for the liberal wing could yield a tie. A 4-4 vote would simply affirm the lower court ruling, without setting any precedent.

Two months after the case was argued, and after authorship of the majority opinion was assigned, Justice Scalia suddenly passed away. His death almost certainly changed the outcome of Fisher II.

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