Of all the news coverage of the U.S. Supreme Court's oral argument in Fisher v. University of Texas, the recap in The Wall Street Journal seems the most insightful, and for this reason: everyone recognizes that Justice Kennedy's vote probably will be the crucial link in stringing together a winning coalition, but the WSJ highlights the trickiness of pinning down Justice Kennedy's jurisprudence in this area.

Justice Anthony Kennedy, considered the only one of the court's five conservatives open to arguments for affirmative action, damped university administrators' hopes of retaining largely unfettered discretion over race's role in admissions. When UT's lawyer, Gregory Garre, sought to explain an admissions formula the university says is a "holistic" review of myriad individual attributes, Justice Kennedy was skeptical.

"So what you're saying is that what counts is race above all," he said. "You want underprivileged of a certain race and privileged of a certain race. So that's race."

Justice Kennedy gave no suggestion of retreating from his prior view of diversity as a compelling state interest. He has said that this, in theory, could justify some racial preferences. However, he has never voted to uphold any affirmative-action program to come before the court.