<p>I believe Justice Kagan won’t participate in the case because, as U.S. Solicitor General, she was involved in framing the U.S. Justice Department’s position as an intervenor in the case. That won’t affect the outcome – if the Supreme Court would have upheld the University of Texas’ system 5-4 with Justice Kagan voting, the vote will be 4-4 without her, and the lower-court ruling will be affirmed on that basis. The university’s affirmative action policy was upheld by the court of appeals, based on the Bollinger case. (It wasn’t Michigan v. Bollinger, by the way . . . Lee Bollinger was the president of the University of Michigan, and effectively in the case he was the stand-in for Michigan.)</p>
<p>It’s pretty unlikely that the Bollinger doctrine will survive. Justice Kennedy, who is usually the swing vote between the relatively liberal and relatively conservative blocs on the Court, was a vociferous dissenter from the ruling in Bollinger that upheld some affirmative action policies, and there are four other Justices who either joined him in dissent in that case or are known to oppose affirmative action strongly.</p>