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

13 Pages Posted: 2 Mar 2016 Last revised: 25 May 2017

See all articles by Richard Lempert

Richard Lempert

University of Michigan Law School

Date Written: February 29, 2016


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.

Keywords: Fisher v. Texas, Fisher 1, Fisher 2

Suggested Citation

Lempert, Richard, Justice Kennedy and the Fisher Revisit: Will the Irrelevant Prove Decisive? (February 29, 2016). U of Michigan Public Law Research Paper No. 499, Available at SSRN: https://ssrn.com/abstract=2740431 or http://dx.doi.org/10.2139/ssrn.2740431

Richard Lempert (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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