Most Court watchers expect Justice Kennedy to cast the deciding vote when the Supreme Court hands down its decision in this term’s installment of Fisher v. University of Texas at Austin or, as it is colloquially titled, Fisher II. What divides observers is not whose vote will be crucial, but the law that vote will make. At one extreme, Justice Kennedy could vote to uphold the Fifth Circuit’s reaffirmation of its earlier decision. When the case was heard, this would almost certainly have meant affirming the circuit court’s decision by an equally divided Court. (Justice Kagan, an almost certain supporter of the Texas holistic admissions plan, has recused herself because when the Fifth Circuit heard the appeal in Fisher I, she was Solicitor General and her office, representing the United States, sided with the University.) With Justice Scalia’s death, if Kennedy voted to uphold the Fifth Circuit’s decision there would be an opinion. At the other extreme, Justice Kennedy could vote to find race-conscious admissions plans unconstitutional, either retreating from his view that the Fourteenth Amendment did not necessarily prohibit all race-conscious governmental decisions or taking an approach like the Court’s in Furman v. Georgia. Furman appeared to have outlawed capital punishment, but not all the Justices who voted with the majority regarded the death penalty as necessarily unconstitutional. What the majority seemed to agree on was that no state had found a constitutionally acceptable way to administer the death penalty. Justice Kennedy could decide that even though attending to race did not necessarily offend the Fourteenth Amendment, it was nonetheless time to end affirmative action because no school had been able to design a constitutionally compliant affirmative action plan. Such an opinion might, however, leave open the door for a differently designed race-conscious approach.
Lempert, Richard O. "Justice Kennedy and the Fisher Revisit: Will the Irrelevant Prove Decisive?" Texas Law Review See Also 94 (2016): 108-120.