Harvard Law School professor Tomiko Brown-Nagin wrote in an email that while most commentators think Kennedy will “forbid or further restrict the use of race in admissions,” she thinks it is possible that he will support the University of Texas’s affirmative action policy “if he recognizes the historical and social significance” of the case.
“[I]t’s the first case in which the Court will rule on an affirmative action case that arises from the South or South West, where the history of discrimination in higher education is egregious and effects of discrimination linger,” she wrote.
Shaw said it is also possible that Chief Justice John G. Roberts Jr. ’76 will join Kennedy and the liberal Justices if he wants to write the majority opinion in order to narrow the impact of the decision.
Reuben said that because the issues in Fisher are so similar to those in Grutter v. Bollinger and Gratz v. Bollinger, two 2003 cases about admissions policies at the University of Michigan, she is unsure how the Justices will approach a precedentJ set so recently.
“I was frankly somewhat surprised that the Court decided to take this case so soon after the Michigan case,” she said.
—Staff writer Dev A. Patel can be reached at email@example.com. Follow him on Twitter @dev_a_patel.
This article has been revised to reflect the following correction:
CORRECTION: May 29, 2013
An earlier version of this article misspelled the first name of Matthew P. Shaw, a doctoral student at the Graduate School of Education.