Professor Jeffrey Fisher weighs in on what might happen should there be a 4-4 ruling in the Supreme Court’s affirmative action case this term. 

The Supreme Court heard oral arguments Wednesday in a major case involving affirmative action, and it could conceivably lead to an exceedingly rare phenomenon by Supreme Court standards: A tie.

As she did when the court last heard the challenge, Fisher v. Texas, Justice Elena Kagan will recuse herself from the case. That’s because she worked on the case as the US’ solicitor general from 2009-10.

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“If the Court divides 4-4 the lower court opinion is affirmed without creating any Supreme Court precedent,” said Jeffrey Fisher, a professor of law at Stanford University.