Vote was 4-3 but Kagan had recused herself. (Prior work on case). So not a Scalia effect. It would've been 5-4 with full court. Interesting.
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If Scalia were alive, it would have been a 4-4 vote, which would have had the effect of affirming CA5 supporting the university.
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Sure but I'm doing a counterfactual to assess where the court is. Assuming Scalia alive but also no recusal—as counterfactual.
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This seems like the novel aspect of the ruling, with or without Scalia:https://twitter.com/adamwinkler/status/745984530725502977 …
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