"[The University of Texas] told the district court. They took a study of students. They analyzed the composition of their classes, and they determined in their educational judgment that greater diversity, just as we said in Grutter, is a goal of their educational program," Sotomayor said to Rein. "So what more proof do you require?"
The court's most conservative justices, including Chief Justice John Roberts, Scalia, and Justice Samuel Alito were more vocal in their questioning of the university's attorney.
"Well I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before," Alito said to Greg Garre, the attorney for UT, regarding the reasoning behind the school's admissions.
After Garre responded, Justice Kennedy, who often plays the role of the swing vote in controversial cases, broke in.
"So what you're saying is that what counts is race above all?" Kennedy asked. "You want underprivileged
of a certain race and privileged of a certain race. So that's race," he added.
The justices will decide the case by June. Only eight of the nine justices will weigh in on the case, as Justice Elena Kagan recused herself, presumably because she worked on the case as Solicitor General before joining the Supreme Court. The remaining justices can decide the case narrowly, by striking down only Texas' process, or broadly, by undermining all affirmative action in public institutions, or somewhere in between. In the case of a four-four tie, the status quo holds and the Texas admissions policy will remain unchanged.
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Seth Cline is a reporter for U.S. News and World Report. You can follow him on Twitter or reach him at email@example.com.