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Justice Antonin Scalia’s untimely death has renewed speculation about how the Supreme Court may decide the fate of university affirmative action in Fisher v. University of Texas. It’s worth taking another look at the multitude of amicus briefs in that case, one of which sparked Scalia’s controversial comments during oral argument that minority students might be better off at less academically rigorous institutions. His comments serve as a reminder that, at least occasionally, amicus briefs catch the attention of the justices and influence their thinking.

The Fisher case, before the court for the second time in three years, involves a challenge to the university’s consideration of race in its admissions process. Relying on an amicus brief filed by UCLA economist and law professor Richard Sander, Scalia questioned whether African-American students might be better off at a “slower-track school where they do well,” rather than at the University of Texas.

Scalia noted that “most of the black scientists in this country… come from schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.” Scalia’s comments touched on an ongoing academic fight about Sander’s so-called “mismatch” theory. A group of empirical scholars filed an amicus brief specifically to contest that theory, arguing that Sander’s research has “major methodological flaws” and is “not good social science.”

This battle reprised the one fought by these same amici when Fisher last came before the Supreme Court in 2012.

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