Any person listening to the oral arguments before the United States Supreme Court on October 10 in Abigail Noel Fisher vs. the University of Texas at Austin, et al, if he had normal thinking abilities and normal command of English but was unfamiliar with “diversity” jurisprudence, would have had serious problems deciphering the language used by the university’s chief legal advocate, Gregory Garre and the U.S. Solicitor General, Gen. Donald B. Verrilli. In defending their indefensible position before the Court, these attorneys performed linguistic somersaults, for little, if anything they said was open and forthright or could be considered remotely logical.
As if on cue, prior to the Court session the Washington Post had earlier solicited the views of the deans of both the Harvard and Yale Law Schools on the matter before the Court. However, despite the collective wisdom of Dean Martha Minow of Harvard and Dean Robert Post of Yale, our extra-terrestial still would recognize that these two legal worthies weren’t very legally precise either. Evidently, the practice of Law, which was once noted for its cogency of thought and writing, appears to be in desperate need of remedial help.
For more than one hour, the standing room only crowd at the U.S. Supreme Court was treated to what can only be described as a “Tower of Babel” in describing “affirmative action” policies at the University of Texas. When asked repeatedly to explain the procedure in obtaining minority students through such a program, both Garre and Verrilli repeatedly responded, as if they had been coached, that “diversity” was the goal of the University; not one of the Justices who attempted to define the merits of such an objective was able to get a satisfactory reply. It was a shabby performance, but there were surprises still to be heard.
Seeing his case weakened by his unsatisfactory replies to the verbal assaults of Justices Scalia, Alito, Roberts and Kennedy, the U. of Texas attorney sought to change the legal question from Abigail Fisher’s constitutional position, to whether or not she had “legal standing” in the first place, since she had asked for the return of her $100 application fee and had attended Louisiana State University after being turned down in Austin, a tactic that reeks of desperation. That request was clearly unacceptable to Chief Justice Roberts, who disputed the Texas attorney’s claim, and supported Fisher’s constitutional rights under the 14th Amendment.
There were other aspects of today’s hearing, including the appearance of the retired Justice, Sandra Day O’Connor, who heard her confreres question of the logic and legality of the Grutter decision, which she wrote, which granted a continuance of the U. of Michigan’s Law School “affirmative action” program.
As is becoming de rigueur, Justice Sotomayor was corrected in her interpretation of a statute by Attorney Bert Rein, who represented Fisher. Still, Sotomayor’s questioning represented the single greatest period of time of any Justice during the hearing. Perhaps she had a point to prove, for without “Affirmative Action,” it is dubious that she would now be part of the Supreme Court.
In the end, what will be the decision in the Fisher’s case, and its impact on the nation? I believe that Justices Scalia, Alito and Thomas will uphold Fisher’s legal rights, and that Sotomayor, Breyer and Ginsburg will not. Today’s directed criticism by Justice Kennedy toward Garre and Verrilli cannot be a clue to what his final vote will be. Justice Kennedy is not predictable, despite what he does in the courtroom.
Equally problematic is the vote of the Chief Justice, who at today’s hearing was among the more vociferous critics of the “affirmative action” policy of the University of Texas. My sense is that Chief Justice Roberts sees clearly the path affirmative action has, and will continue to take, but he may, once again, seek the path of least judicial resistance.
Given Justice Kagan’s recusal, if either Kennedy or Roberts agrees with the University of Texas’s claim that “diversity” is anything it wishes it to be, then racial discrimination against whites will be further embedded in our law.