Justice Kennedy and the Fisher Revisit: Will the Irrelevant Prove Decisive?

This brief commentary, forthcoming in See Also an on-line adjunct to the Texas Law review, speculates about Justice Kennedy’s likely vote in the soon to be revealed decision in Fisher v. Texas. It specifically explores four factors that legally speaking are largely if not wholly irrelevant but may nonetheless influence Justice Kennedy’s position: These are (1) anger at the Fifth Circuit for how it handled the remand in Fisher 1; (2) Racially charged police killings and the rise of the Black Lives Matter Movement; (3) arguments in amicus briefs regarding mismatch theory and science mismatch and (4) the death of Justice Scalia. The piece is highly speculative but until we know how Justice Kennedy decided it may be of interest.