MORE: This is a 4-3 decision, not a mere affirmance by an evenly divided Court. The odd number of Justices is due to Kagan's recusal. (She worked on the case when she was Solicitor General.)
According to SCOTUSblog, the opinion, written by Justice Kennedy, is "decidedly a compromise," because it requires UT to "continue to reassess its need for any kind of race-conscious affirmative action" and finds it "justified only by a robust record showing that other means of addressing diversity concerns have failed." SCOTUSblog detects "a pretty meaningful shift away here from the trajectory of Fisher I," which "faulted the lower court for giving too much deference to the judgments of the university." Kennedy wrote:
"Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission."AND: As the Court put it:
"The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies."ALSO: Alito has a 50-page dissent that includes the line: "Something strange has happened since our prior decision in this case." I don't think that's supposed to be a reference to the death of Antonin Scalia. In any event, if Scalia had lived — assuming he wouldn't have swayed Kennedy from his deference-to-educators approach — the decision would have been 4-4, affirming the Court below and leaving UT to its own devices.
PLUS: Those of you who are disappointed by this decision should consider that it advantages your side of the political argument. A decision going the other way would have made the issue of Supreme Court appointments much more conspicuous and given Hillary Clinton a great boost.
AND: This is the case where Justice Scalia — at oral argument, 3 months before his death — expressed objection to affirmative action in a notably clumsy way, saying maybe those who would, without affirmative action, be better off, because they'd be at "slower-track schools."