The chief justice and Justice Samuel Alito expressed similar sentiments as Scalia throughout the arguments. “You could say that the whole point of something like the Equal Protection Clause is to take race off the table,” Roberts told Rosenbaum at one point.
Justice Clarence Thomas, as usual, said nothing Tuesday, but has expressed opposition to racial preferences throughout his time on the court.
With Justice Elena Kagan having recused herself from hearing the case, Kennedy’s final view on whether the case is distinguishable from Seattle and whether the pair of “political restructuring” cases should be overruled or more narrowly applied going forward, likely will determine the outcome in the case.
Because of Kagan’s recusal, a 4-4 split, with Kennedy siding with Sotomayor and Justices Ruth Bader Ginsburg and Stephen Breyer, would uphold the appellate court ruling striking down the amendment — although it would not establish a national precedent applying to other such bans.