The court’s membership has changed since 2003, most notably for these purposes with the appointment of Justice Samuel A. Alito Jr., who replaced Justice O’Connor in 2006. Justice Alito has voted with the court’s more conservative justices in decisions hostile to the use of racial classifications by the government.
“There thus seem five votes — Roberts, Scalia, Kennedy, Thomas and Alito — to overrule Grutter and hold that affirmative action programs are unconstitutional,” Erwin Chemerinsky, dean of the law school at the University of California, Irvine, wrote in a recent book, “The Conservative Assault on the Constitution.”
Justice Kennedy has never really backed affirmative action. He is unlikely to start now, but even if you believe that somehow he'll have a change of heart...
Justice Elena Kagan disqualified herself from hearing the case, presumably because she had worked on it as solicitor general. Arguments in the case will be heard during the court’s next term, which starts in October.
This might be it, folks. The only issue is how broad or narrow the eventual ruling will be here. This court has already balanced the scales of campaign free speech through unlimited donations. What they will do if they see affirmative action as a greater evil than discrimination is anyone's guess.