Supreme Court Affirmative Action Ruling Hinges on Kennedy

He has said in the past that there is "no constitutional objection" to considering race as one modest factor among many others to achieve diversity. But he has never voted in favor of a race-conscious plan.

Among the possibilities, the court could limit the ruling by saying that UT didn't need to overlay a race-conscious program over a race-neutral program (top 10 percent plan) that was already working. Or it could rule more broadly and say, for example, that the lower court was wrong to defer to the university on the question of when it has reached sufficient diversity.

If the court rules by the end of the month to uphold UT's program, it will come as a tremendous relief to supporters of affirmative action. Because Justice Kagan is recused from the case, a 4-4 tie would leave the lower court decision in favor of the program intact, but have no broad precedential value.

The University of Texas is also challenging whether Fisher, who has now graduated from another university, has the legal right, or "standing," to bring the case.

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