Professor Lisa McElroy was in the courtroom for arguments on U.S. Supreme Court case Fisher v. University of Texas on Oct. 10 and shared her thoughts on National Public Radio affiliate KPCC’s AirTalk.

As McElroy explained, Fisher involves the University of Texas’s affirmative action program which considers race among other factors when evaluating candidates for admission.

McElroy noted that the atmosphere in the courtroom was riveting with possibly more people present than there were for the Affordable Care Act arguments last term. Of particular note was former Justice Sandra Day O’Connor’s presence in the audience, McElroy said.

McElroy highlighted that O’Connor wrote the court’s decision in Grutter v. Bollinger in 2003.  That case upheld the University of Michigan’s affirmative action admissions policy and has stood as the landmark case in affirmative action law since that time, McElroy added. McElroy called O’Connor’s presence symbolic, showing that she stands by the constitutional validity of affirmative action.

Speculating on the likely outcome of the case, McElroy pointed out that it may very well hinge on the composition of the court’s bench. There are only eight justices presiding over this matter due to Justice Kagan’s recusal from the case, McElroy explained. Court watchers were, therefore, most interested in Justice Kennedy’s questions since he would be the likely tiebreaking vote in any decision, McElroy added. However, McElroy found Kennedy to be equally inquisitive of both sides during the arguments, revealing no bias in favor of either position.

McElroy speculated that the case may result in a 4-4 split.  Such a split is the best possible scenario for supporters of affirmative action, as it leaves the lower court’s decision in support of the affirmative action program intact, McElroy concluded.