Following up on my March 7 post, Reactions to Rumsfeld v. FAIR: here are more post-mortems on the Supreme Court’s unanimous upholding of the Solomon Amendment in Rumsfeld v. FAIR [blogged here]:
- New York Times: Adam Litvak, Supreme Court Smackdown:
Hundreds of law professors at the nation’s finest law schools, representing the all-but-unanimous views of the legal academy, filed a series of briefs last year on one side of a Supreme Court case. On Web sites and in lecture halls, the professors spoke out about the case, which they called a crucial test for gay rights and free speech.
Marshalling their collective intellectual firepower and moral outrage, the professors, from Harvard, Yale and elsewhere, made it sound obvious: Universities should be allowed, they said, to take government money but oppose the military’s policies on homosexuality by restricting military recruiting on campus.
On Monday, the best minds in the legal business struck out. The vote was 8-to-0 against them — a shutout, a rout, a humiliation. It is one thing for liberal academics to fail to persuade conservative justices like Antonin Scalia and Clarence Thomas. But the law professors did not produce so much as a sympathetic word from liberal justices like Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.
And if the result was not embarrassing enough, there was also the tone of the court’s unanimous decision, written by Chief Justice John G. Roberts Jr. In patient cadences, the kind you use in addressing a slightly dull child, the chief justice explained that law students would not assume that their schools supported the military’s "don’t ask, don’t tell" policy if they saw military recruiters on campus….
Peter H. Schuck, a Yale law professor who thought the law schools’ legal position was misguided, said that many professors were so indignant about the military’s treatment of gay men and women and so scornful of the military itself that their judgment became clouded. "There is often a feeling that if something is morally wrong it must be legally wrong and that clever arguments can bring those two things into alignment," Professor Schuck said. The elite law schools have for decades been overwhelmingly liberal, Professor Schuck said, and that may have blinded professors to problems with their arguments.
The Institutional vanity and intellectual slovenliness of America’s campus-based intelligentsia have made academia more peripheral to civic life than at any time since the 19th century. On Monday, its place at the periphery was underscored as the Supreme Court unanimously gave short shrift to some law professors who insisted that their First Amendment rights to free speech and association were violated by the law requiring that military recruiters be allowed to speak to the professors’ students if the professors’ schools receive federal money.
- Weekly Standard: Peter Berkowitz: U.S. Military 8, Elite Law Schools: 0: How Did So Many Professors Misunderstand the Law?:
Roberts’s opinion does give rise to, and leaves unresolved, one nonlegal but rather large and disturbing question: How could so many law professors of such high rank and distinction be so wrong about such straightforward issues of constitutional law?…
This dazzling array of eminent law professors proved incapable–even after hiring the best Democratic party legal talent money could buy–of advancing a single legal argument persuasive enough to pick off even a single dissent from the four more progressive justices on the court–Souter, Breyer, Ginsburg, and Stevens–or to provoke even a single concurrence expressing a single demurral on a single point of law from Chief Justice Roberts’s opinion. No doubt this unanimity was in substantial measure a result of the inherent weakness of the law professors’ case. It also very likely had something to do with Roberts’s reputation for working well with colleagues of differing points of view, and with the commitment he gave at his Senate Judiciary Committee hearing to foster collegiality among his colleagues….
Perhaps the law professors are simply poor advocates, unable to craft compelling constitutional arguments even on an issue–their own free speech–that is near and dear to them. Or perhaps they cynically believed that, there being no major difference between law and politics, the more left-leaning justices would side with their ostensibly progressive cause, however ungrounded in constitutional text, history, structure, or precedent their legal arguments were. Or perhaps, knowing their case was a bad one, they nevertheless sought a symbolic expression of their support for gay rights.
Certainly law professors who wanted to eliminate "Don’t Ask, Don’t Tell" and had respect for democratic politics would not have put the focus on their own contrived deprivations of expression and association, but would have concentrated on the claims of gay and lesbian citizens who wish to put their lives on the line for their country. Such law professors would have educated themselves and made themselves aware that the U.S. armed forces are far and away the most integrated institutions in the nation, indeed, greatly surpassing elite law school faculties and student bodies.
- Law.com: Howard Bashman, Liberal Law Professors and the Solomon Amendment Rout:
Notwithstanding the 8-0 trouncing that FAIR’s arguments received at the hands of the Supreme Court, it strikes me as a bit unfair to argue that the outcome calls into question the professional qualifications of those liberal law professors who devised and backed the Solomon Amendment litigation.
To begin with, before the Supreme Court ruled, FAIR’s arguments had achieved victory in both the 3rd Circuit and in a federal district court in Connecticut. FAIR deserves credit for choosing the 3rd Circuit as the forum in which to litigate the initial challenge to the Solomon Amendment, based on that federal appellate court’s reputation as moderate to liberal on First Amendment issues.
Second, notwithstanding its ultimate loss in the Supreme Court, FAIR has caused a great deal of additional attention to be focused on the existence of the "Don’t Ask, Don’t Tell" policy, which may cause many people who had never considered the policy to question its necessity. In fact, even in defeat FAIR may help undermine the policy, as law students who do not believe the policy is justified will now have easier access to military recruiters, allowing those students more readily to join the military and seek from within to overturn support for the policy.
FAIR’s most significant achievement in the litigation resulted from a concession by the solicitor general at oral argument, in response to questioning from Justices Ruth Bader Ginsburg, Anthony Kennedy, and Antonin Scalia, recognizing that vocal and enthusiastic protests of on-campus military recruiters can occur without violating the Solomon Amendment. The Supreme Court’s opinion mentions that concession, giving FAIR a small victory in the midst of an otherwise total defeat.
For FAIR and its supporters, the Solomon Amendment case was being litigated as a matter of principle, and often litigating for a principle, instead of being able to compromise, results in an unmitigated loss. And sometimes losing 8- is preferable to losing by just a single vote. Yet to say that the law professors supporting FAIR are unqualified to instruct the next generation of lawyers or determine litigation strategy overlooks what FAIR actually accomplished earlier in the litigation and in the court of public opinion. FAIR may have lost the case, but the battle over the principle at stake continues.
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The Right Side of the Rainbow: If Law Is Politics, Where Do You Go for Justice Under Law?:
Mr. Bashman is right, though. Professional qualifications weren’t the problem here. This was the problem: a lot of people, including these law professors, think of the law as just politics by other means. In other words, these professors concerned themselves not with the legal question of what the law is, but instead with the political question of what the law ought, in their opinion, to be. In this view, the text of the law, including the Constitution, has no fixed meaning; elections are without consequence; the courts are an alternative to Congress; and you and I cannot know from day to day what the law says or the identity of the lawgiver. If law is politics, it will suffer from the vagaries and capriciousness of politics and from the whims of the politicians, including the robed ones.
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Chronicle of Higher Education: High Court Rejects Arguments Against the Solomon Amendment, by Kelly Field:
The U.S. Supreme Court last week upheld the law that allows the federal government to withhold funds from colleges that limit military recruiting, but sidestepped the question of whether the law interferes with academic freedom….
The founder of the coalition, Kent Greenfield, a law professor at Boston College, said the ruling was a setback. However, he added, "we’re confident that in the long run, we’ll win that larger civil-rights struggle" over the military’s "don’t ask, don’t tell" policy, which bars openly gay men and lesbians from serving. But Daniel D. Polsby, dean of George Mason University’s School of Law, who wrote a brief supporting the government’s position, said the decision proved that "there was really no First Amendment case there to speak of." "This was essentially a self-indulgent exercise on the part of a law-school industry that has grown increasingly isolated and alienated from the mainstream of American law," said Mr. Polsby.
