The U.S. Justice Department reportedly is preparing to investigate university admissions policies for discrimination against white applicants, but it may be years before an affirmative action case returns to the U.S. Supreme Court, and when it does, the key justice—Anthony Kennedy—may not be there.

The internal DOJ announcement, first reported by The New York Times, coincides with continuing rumors that Kennedy will retire soon, perhaps after the coming term. It also is a reminder of the high court's most recent university affirmative action decision just a year ago—Fisher v. University of Texas at Austin—in which Kennedy wrote the majority opinion upholding the university's admissions plan in its second round before the justices.

In the case, known as Fisher II, Kennedy led a 4-3 court in a ruling that stunned many who had expected the justices, after first ruling in the dispute in 2013, to strike down the university's plan and perhaps deliver a fatal blow to all affirmative action.

But Kennedy, who had never before upheld an affirmative action plan, was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justice Antonin Scalia had died in February of that year, and Justice Elena Kagan was recused presumably because of work on the case during her tenure as U.S. solicitor general. Latham & Watkins partner Gregory Garre argued and won both Fisher rulings for the university.

The 4-3 ruling also reflected the court's continuing sharp divide on race despite Kennedy's surprising move to the left. If Kennedy does retire in the next year or two and President Donald Trump makes the nomination for that seat, a more stalwart conservative justice may spell trouble for the consideration universities give to race in admissions policies.

The Justice Department on Wednesday pushed back against The New York Times report, saying in a statement: “This Department of Justice has not received or issued any directive, memorandum, initiative, or policy related to university admissions in general. The Department of Justice is committed to protecting all Americans from all forms of illegal race-based discrimination.”

That the Justice Department could be interested in examining university admissions policies was no surprise to some former department lawyers, given the department's conservative leadership under Attorney General Jeff Sessions. Main Justice would be “foolish,” one attorney predicted, to bring a suit while Kennedy remains on the court.

The NYT report about the Justice Department's interest in affirmative action “completely blindsided” the chief architect of the Texas admission challenges, Edward Blum of the Project on Fair Representation. Blum recruited Abigail Fisher for the high court challenge and hired Bert Rein of Wiley Rein to litigate the case.

Blum also has organized and leads Students for Fair Admissions, which has brought suits against Harvard University and the University of North Carolina in federal court, and most recently, another suit against the University of Texas—this time in state court.

The law firm litigating those suits on behalf of Blum's organization is Consovoy McCarthy Park in Arlington, Virginia. William Consovoy, a former clerk to Justice Clarence Thomas, is the lead litigator.

The Harvard suit, filed in November 2014, alleged the university discriminates against prospective students by limiting the number of Asian-Americans it will admit each year and by engaging in racial balancing. Seth Waxman of Wilmer Cutler Pickering Hale and Dorr represents Harvard.

The Harvard suit and the University of North Carolina suit, also filed in 2014 and making similar allegations, are still in federal district courts. “I would say I'm going to be tortured for at least another two years on this,” Blum said Wednesday.

Fact discovery in the Harvard suit should be complete in the next week or so and summary judgment briefing is expected to begin next year. Discovery has ended in the UNC suit and summary judgment briefing is also to begin in 2018.

On June 27, Blum's student group launched a new attack on the University of Texas' admissions policies, alleging this time that they violate the Texas Constitution and a state statute. The state's constitution, according to Blum, provides greater protection against discrimination than the federal Constitution. The Supreme Court's ruling last June in Fisher's case, he said, will have no bearing on his latest suit.

“The Texas Constitution enshrines a colorblind vision of equality reflected in the opinions of Justices Clarence Thomas, Antonin Scalia, Samuel Alito, and Chief Justice John Roberts,” Blum said in announcing the lawsuit. “It does not permit the convoluted version of equality that Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor have endorsed, which allows universities to discriminate on the basis of race.”

Of course no one can predict whether a Blum-backed suit or a future Trump Justice Department complaint will get to the high court first. Just as difficult to predict is the makeup of the Supreme Court when, and not if, that happens.

“It seems to me that what DOJ is contemplating is to use its authority to enforce Title VI—and to promulgate regulations thereunder—which would require concluding that the Civil Rights Act and accompanying regulations prohibit the kind of race-based affirmative action that the Supreme Court in Fisher II reaffirmed the Constitution permits,” said Stephen Vladeck of the University of Texas School of Law. “Needless to say, that's going to provoke some pretty heated litigation.”

This story was updated with comment from the Justice Department.