Sharp Questioning by Supreme Court Justices in Affirmative Action Case

Court heard arguments on affirmative action in college admissions Wednesday, and justices appear split.

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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