The news Wednesday that Justice Anthony M. Kennedy was stepping down from the Supreme Court could have a major impact on future rulings on the constitutionality of colleges’ consideration of race in admissions.
Justice Kennedy was the author of the two most recent Supreme Court decisions — both involving the University of Texas at Austin — upholding universities’ right to consider race in admissions. While the decisions were hailed by college leaders who support the consideration of race, both decisions were narrow, setting limits on how colleges could consider race. And earlier in his Supreme Court tenure, Justice Kennedy was dubious of the consideration of race.
Depending on whom President Trump nominates, there may be no immediate indication of how the Supreme Court would rule on affirmative action. And much of the public discussion about the nomination may focus on other issues (abortion or gay rights, for example). So it is unclear how much clarity will come from the nomination and confirmation process….