For starters, Scalia is not the deciding vote on affirmative action. That, almost certainly, would be Justice Anthony Kennedy, and Kennedy has consistently weighed affirmative-action cases in narrower terms than the sweeping comments Scalia made last week. Kennedy passed on a chance to strike down all affirmative action programs in 2013, the last time the court considered the University of Texas’ admissions policy.
In that ruling, Kennedy said that pursuing a more diverse student body is a legitimate interest for state universities, and that some form of racial preference could be used to achieve it. But he said courts should hold universities to a heightened legal standard, known as “strict scrutiny,” when evaluating the use of race in admissions decisions. This time, the justices were debating whether Texas’ policy had met that standard.
That’s where Roberts and Alito trained many of their questions last week — and, unlike Scalia, they got Kennedy’s attention. They suggested Texas had not, in fact, done the homework to prove that it needs to use race in its admissions decisions, or that an explicit racial preference is the only way to achieve more diversity on campus.
“If you look at an individual person, can you tell whether that person was admitted solely because of race?” Alito asked. “Whether that person would not have been admitted were it not for the fact that the person was an African-American or Hispanic?”
Alito’s implication was that Texas doesn’t really know whether the use of race in some admissions decisions is actually the reason its minority enrollment has improved, and that the school could achieve its goals in other ways. It’s an argument that piqued Kennedy’s interest — he alluded to Alito’s questions at least three times during last week’s arguments.
A seemingly narrow ruling against Texas’ use of affirmative action would not, on its face, close the door to all uses of racial preference — a step Kennedy has not seemed eager to take. But, in part because race is such a small factor in UT’s admissions process, a narrow ruling in this case would likely make racial preferences much harder for any school to justify, essentially rolling them back without formally taking the option off the table.
“You could have determined whether the addition of race to the [admissions] equation has done anything to increase classroom diversity,” Alito told the university’s attorney. “And you haven't done that.”
In fact, the brightest spot for affirmative-action supporters came when Kennedy agreed that the school had not answered the questions Alito posed, but raised the possibility of sending the case back to a lower court once again, for a new trial in which the school could present new evidence.
“It seems to me that Justice Alito's question indicates that this is the kind of thing that we should know but we don't know,” Kennedy said.