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Scalia’s Record, Higher Education and Pending Affirmative Action Case

The death of Supreme Court Justice Antonin Scalia stunned legal and political observers — and left many wondering about the possible impact on a pending U.S. Supreme Court case over affirmative action.

Many cases before the Supreme Court have the potential — as long as there are only eight justices on the court — to end in 4-4 ties. In such situations, the appeals court decision that brought the cases to the Supreme Court would stand. But in the current affirmative action case, Justice Elena Kagan has recused herself, so the seven remaining justices would produce a majority one way or the other. Many legal observers had been predicting a 5-3 decision barring or limiting the consideration of race in admissions, as all but three justices have expressed strong skepticism about government use of race.