recused kagan were basically arguing that the fifth circuit was wrong to accept the assertion by the school that its admissions process uses race in a permissible way. kennedy wrote, in fact, that the court needed to give a closer analysis to how the practice works in process. that said, there is a mountain of evidence suggesting affirmative action in the admissions progress actually disadvantages the minority applica applicant. so is kennedy suggesting that s the kind of evidence the fifth circuit needs to assess at a greater amount? i actually think all he s suggesting is that we got into this case improminently and need a face-saving way out. so we ve got to string a bunch of words together that looks like we re making law. i actually strongly think they aren t. i think this really counts as a very substantial liberal win at