July 25, 2005

Roberts and the Solomon Amendment case.

Jeffrey Toobin has a big piece in the new New Yorker about the Solomon Amendment case, FAIR v. Rumsfeld. He speculates about how John Roberts might view it:
Even though the FAIR case is rooted in the law schools’ attempt to address discrimination on the basis of sexual orientation, the case is not, strictly speaking, about gay rights. It is, rather, a First Amendment case, about whether the Solomon Amendment impinges on the right to freedom of speech at universities, and whether the government has the right to use the leverage of federal aid to insist that the military be treated like other employers....

Most observers regard the legal arguments of both sides in FAIR as at least plausible, but most of the current Justices would probably want to defer to the needs of the military. Roberts’s history suggests that he would do the same; the concept of judicial restraint means a reluctance to invalidate the actions of the other branches of government....

Is Roberts committed to some sort of across-the-board judicial restraint, such that he'd be unsympathic to First Amendment arguments raised against the government? Here's Toobin's evidence that he is:
Roberts believes in the concept of judicial restraint. In a recent opinion in the D.C. Circuit, he chided his conservative brethren in a case about the regulation of raw materials used in making drugs, admonishing them, in Justice Felix Frankfurter’s words, “to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.” In an answer to the senators about his judicial role models, he wrote, “I admire the judicial restraint of Holmes and Brandeis, the intellectual rigor of Frankfurter, the common sense and pragmatism of Jackson, the vision of John Marshall.”
That first part is about deciding questions on narrow grounds rather than enunciating broad rules, which is not relevant to which way he'll decide the FAIR case, only to how he'd frame the holding.

The list of favorite judges means something more, but Holmes and Brandeis don't represent judicial restraint across-the-board. Holmes is the key figure in the development of free speech rights against government. (And Brandeis joined him.) What Roberts served up is a list of luminaries there, standing for different things, with only Holmes and Brandeis representing restraint. Others he admires for other things -- intellectual rigor, pragmatism, the vision thing. Who's to know what this amorphous tribute means about how Roberts will actually decide cases?

I'm rather thinking Toobin had a big piece on the FAIR case ready to go, and he tacked on this speculation about Roberts. Good enough. But it doesn't take us very far. Still, the piece is well worth reading for an explanation of the FAIR case, especially the litigation strategies of the parties.


Brendan said...

I don't know what's more maddening: deliberately barring military recruiters during a time of war, or the forced expulsion of gay Arabic translators when we can least afford to lose them. Part of me thinks the military should "get over it" the same way we told Little Rock residents to get over it 50 years ago.

Nostalgia time: when I was a UW undergrad in the mid-1980s, the liberal cause du jour was CIA recruitment on campus (bad!) and university divestment from South Africa--which expressed itself in mock "shanty towns" and insufferable Daily Cardinal editorials. Curiously, many of the long-ago students who cared so much about the plight of South Africans are the same ones who sneer at ordinary Iraqis today. For some untold reason, one group was deserving of our help while the other is not. Sanctions for Botha, but not Saddam. The mystery widens.

Bruce Hayden said...

Obviously, Althouse is the expert here, teaching this moribund subject, but...

I frankly don't see Roberts buying into the FAIR argument. It would have to, in my view, significantly expand the 1st Amdt. and curtail Congress' Spending Power. Besides, actual speech isn't beeing curtailed, but rather actions. (obviously, I would think the argument being that the actions equated to speech...)

And, the thing that is worrisome to me is the slippery slope that it would more than likely usher in. Where do you then draw the line?

And, of course, the law schools are inhibiting the CinC of the military from his job of defending this country during war. Another strike against the lawsuit.

From everything I have heard of and read from Judge Roberts, he seems highely unlikely to buy into the actions equal speech argument, and is likely to defer to the President, esp. in time of war.

Indeed, one of the things that has struck me about him is that he does seem to defer a lot - to Congress and to trial courts, for example. In short, the opposite of an activist judge.

John Thacker said...

As far as the slippery slope goes, I agree that it may be difficult (but yet possible) to draw a line that would allow colleges to exclude recruiters and yet continue to allow the Federal Government the right to deny money to schools like Bob Jones University. (And even to deny financial aid to students who choose to go there, as it has done.)

Ann Althouse said...

I agree that Roberts (and anyone else) is likely to view the First Amendment ground as weak. But a good conservative ought to be interested in reining in the Spending Power. Using the vast federal spending on education to foist this condition on schools should rub you the wrong way if you are serious about limits on federal power.

Marty Lederman said...

This doesn't have anything to do with Judge Roberts, but I thought I'd mention that Toobin's article leaves at least two misimpressions about the Solomon Amendment case.

First, Toobin writes that "as the government sees it, the FAIR case is not about free speech or association but, rather, about the right of the federal government to control how taxpayers' money is spent." Well, there's a grain of truth in this, but it's misleading. The Government does place some emphasis on the fact that military recruiting access is a condition on receipt of federal funds; but its principal, and much more prominent, argument is that there is no free speech or association right implicated here -- that, in fact, the Government could *directly* impose a requirement of military access, even apart from federal funding. (See the brief here: http://www.scotusblog.com/movabletype/archives/FAIR.sg.brief.pdf.)

Second, and more importantly, Toobin is unfortunately taken in by the Government's attempt to characterize the statute as being about *equal* access for military recruiters. He is correct that "the theme of the government’s brief . . . is equality": The Government certainly argues -- repeatedly -- that "the amendment simply puts the government on a level playing field with other potential employers." But this is simply dead wrong as a matter of fact, because the whole point of the Solomon Amendment, as construed by the Government, is to require schools to grant the military an *exemption* from the ordinary recruiting rules that apply *to all other employers.* It's a spending condition that requires not equality, but a preference for the military. (Under the Solomon Amendment, that is, the military is permitted access to students, but the "small law firm" in Scalia's Lawrence dissent remains excluded from campus -- even though both the Defense Department and the small law firm discriminate equally against gay and lesbian employees.) I'm not suggesting that this necessarily changes the constitutional calculus, or even that it's a correct reading of the statute. But Toobin is simply mistaken in writing that the case is about "whether the government has the right to use the leverage of federal aid to insist that the military be treated like other employers." In fact, the case is about whether the government can insist that colleges and universities treat the military *unlike* other employers.

Ann Althouse said...

Thanks, Marty! Yes, the question would only be about "how taxpayers' money is spent" if the Spending Power doctrine were changed (to O'Connor's dissentiing opinion in South Dakota v. Dole). And the government would lose if the doctrine were thus changed.

Marty Lederman said...

I'm not sure this has much to do with South Dakota v. Dole, Ann -- because it's conditions imposed on receipt of funds by *private* entities, not by states. Accordingly, the spending side of the case raises issues related to the doctrine of Grove City, Bob Jones, Rust v. Sullivan, FCC v. League of Women Voters, Rosenberger, Velazquez, etc.

Nevertheless, my first point was an even "broader" one -- namely, that the government's argument is that the requirement could be imposed *directly,* even if not attached to federal funds. If the Court accepts *that* argument, then a fortiori the requirement could be made a condition of receipt of funds (whether we're in Rust/LWV/Grove City doctrine, in South Dakota v. Dole, or otherwise).

Ann Althouse said...

Marty: Well, from the standpoint of the University of Wisconsin -- we are the state and we are roped in!

If Congress wants to compel this compliance directly, let them try to do it. They didn't, so they need to support it under the Spending Power.

Most of the talk is about whether there's an independent constitutional violation (of free speech), but the phrase of Toobin's that you cited -- "the right of the federal government to control how taxpayers' money is spent" -- calls to mind the requirement of a relationship between the spending and the condition, which has been a low standard. My reference to the Dole dissent is to this idea that the condition has to be about how to spend the money, which a higher standard and which the federal government's argument seems to be using.

John Thacker said...

"The judicial restraint of Holmes"? Clearly it means that he admires Holmes's opinion in Buck v. Bell, where he refused to overturn a sentence of mandatory sterilization for someone mentally retarded. "Three generations of imbeciles is enough!" indeed. The horror.