Steve Sailer has posted parts of the oral arguments in the Fisher case with some amusing and insightful commentary here and here. The excerpts are hilarious examples of insignificant speech and meaningless blather on the part of the attorneys representing the University of Texas and the Obama administration.
The more conservative justices really rake the attorneys over the coals. But it is wise to remember that at least five of these apparently hard-headed jurists also like to chatter about concepts devoid of substance. They either believe or pretend to believe that terms such as "narrowly tailored," "critical mass," and “diversity” have real meaning attached to the legitimate purpose of government. The whole issue is an exercise in abstract jargon with no connection to the Constitution, just as affirmative action has nothing to do with the genuine meaning of “equal protection.”
“Equal protection of the laws” in the Fourteenth Amendment originally referred to government’s primary duty to secure rights such as life, liberty, and property equally. Government is supposed to prosecute and punish crimes against person and property, guarantee the privileges and immunities of citizens (such as the right to travel and to go into business on the same terms as anyone else), and afford all citizens due process of law in trials. Equal protection originally had nothing to do with whether schools, businesses, churches, or other private associations choose to prefer some people over others as students, employees, or ministers.
The state of Texas, the Obama Administration, and the Supreme Court are all wrapped up in wondering about "disparate impact" and "narrowly tailored" policies geared to promote diversity and avoid discrimination while the murder rate in places such as Chicago skyrockets and the Detroit Police union advises visitors they are entering a Hobbesian state of nature. If our government was genuinely interested in securing the rights of its citizens, it would do something about the fact that more Americans have been murdered in Chicago than killed in Afghanistan this year.
From what I can tell, neither Presidential candidate has any concern with something so prosaic as securing life, liberty, and property in those numerous urban zones in our nation where the rule of law, and therefore equal protection of the laws, has broken down. The Obama administration is very concerned about racial disparities in school suspension rates; and Romney has assured us that he will identify those who share our values in Syria and aid them to topple the Assad regime. These policies have one thing in common--neither one has anything to do with the government’s constitutional duty to secure the lives and properties of American citizens.