[T]he Court tries very hard to distribute the authorship of majority opinions evenly not just over the course of the Term, but also within a sitting (the two-week periods from October through April when the Court hears oral argument). So going into today, Justices Kennedy and Sotomayor were the only Justices without majority opinions in October.... Now he's the only one without an October opinion, which leads to the assumption that he is writing Fisher.Does this help predict the outcome of the case? Here's my effort, from last October, to read Justice Kennedy at the oral argument. Remember, Texas has a very odd kind of affirmative action, adding an individualized approach, with race as a plus factor, after a facially neutral program that admits the top 10% of students from every Texas high school. At oral argument, Kennedy focused on the detail that the additional race-based selection was done to bring in more privileged black and Hispanic students, because the 10% program tended to admit underprivileged blacks and Hispanics (which reinforced a stereotype about black and Hispanic people). I said at the time (referring to the Court's most recent affirmative action case, Grutter):
So, it seems, the additional affirmative action is needed to get a more varied group of minority students, in which case, the point is to bring in privileged minority students, because these are the students who — in Grutter terms — might provide the classroom benefit of teaching all the students that minority students don't have "some characteristic minority viewpoint." ...Kennedy seemed to have trouble seeing the sense of that at oral argument. He said "So what you're saying is that what counts is race above all," which is missing the point. I'm sure he ultimately understood the point, but I think we saw — in real time — that the point isn't intuitively appealing to him.
I'm not taking a position on whether UT's admissions policy is good or whether it's constitutional.... All I am saying is that if Grutter is to be applied (and not limited or overruled), an affirmative action program that's all about boosting the most privileged minority students actually makes sense.
That said, Fisher could narrowly reject the odd UT program and leave the more typical Grutter-style affirmative action alone. But Fisher presents an opportunity to overturn Grutter, and Kennedy dissented in Grutter, which was a 5-4 decision with Justice O'Connor casting the deciding vote. O'Connor's successor, Justice Alito was instrumental at oral argument — as I said at the time — in extracting that point about privileged minority applicants receiving the advantage.
So I'll make a rash prediction: a narrow decision, determined by Kennedy and Alito (and maybe Roberts), striking down only the Texas program. Scalia and Thomas concur, complaining that Grutter should have been overruled. Everyone else dissents.