On Monday Roberts's shredding of the law schools' arguments included a tartness that betrayed impatience with law professors who cannot understand pertinent distinctions.See what you get when you write a crisp, clear opinion? Columnists portray you as impatient and tart. Damn it, Will! Roberts is writing well. Are you so used to flabby, obfuscatory court opinions that you think they're a way to show that a justice takes the arguments and his job as a judge seriously?
Well, Will would like to think that we professors are just lost in a world of our own, but the truth is that we've put a lot of effort into enforcing standards of nondiscrimination in our law schools, and we don't like to have to sacrifice that for the sake of the military's Don't-Ask-Don't-Tell policy.
Recruiters are obviously not components of law schools; they are outsiders on brief visits for a limited purpose. "Nothing about recruiting," Roberts wrote, "suggests that law schools agree with any speech by recruiters." Besides, "We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy." Then, Roberts's tartness: "Surely students have not lost that ability by the time they get to law school."Will is being obtuse. People make the best arguments they can, once they've decided to litigate. The decision to litigate is not based solely on the strength of the arguments. It's wrong to bring a completely unfounded claim, but there is a worthy tradition of making difficult new arguments, even when the chances of losing are high, when one believes important principles are at stake, as the law professors did here.
The law schools and faculties earned that sip of the chief justice's vinegar by bringing this case to court. The professors deserved -- no, let us just say they needed -- better legal advice than they were able to give themselves.