The surprise 4-3 opinion by Justice Kennedy in the University of Texas Fisher affirmative action case is a yellow light for universities to take race into account in admissions. Universities will have to be cautious and establish a record that non-race based affirmative action plans do not achieve the educational goals of diversity that a university may wish to follow. It is not all that supporters of affirmative action will want, but it is about as much (more!) than anyone could have expected from Justice Kennedy, who in the past has not voted in favor of affirmative action programs.

What would it have looked like if Justice Scalia was on the Court. We likely would have had a 3-3 tie, which would have allowed the affirmative action program to go into effect, but without establishing any precedent. It is also possible that with Scalia on the Court and the prospect of a 4-4 tie, the Court could have punted or issued a non-decision again in the case.