March 12, 2006

"The 'ridiculously obvious' point that the Supreme Court is 'a justificatory instrument' for military policy."

Adam Liptak taps lawprof opinion on why we lost the Solomon Amendment case:
There is the reactionary Supreme Court hypothesis. William N. Eskridge Jr., a Yale law professor who helped shape the losing side's arguments, said the defeat demonstrates the "ridiculously obvious" point that the Supreme Court is "a justificatory instrument" for military policy.

Then there is the clueless law professor theory.

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....

"Unfortunately," said Laurence H. Tribe, a law professor at Harvard, "a great many very smart people were so close to the issues that they failed listen to those of us who said this was a really difficult argument."
I don't see how making an argument implies that you don't realize it's a difficult argument. And I don't think it's clueless to decide to go forward with an argument that you know is a big uphill battle. When you're fighting for a principle, even a losing battle can be worthwhile.

As for that ridiculously obvious justificatory instrument business... It doesn't explain why not one Justice even concurred to say something nice about the lawprofs. And it doesn't acknowledge that military power is one of the things that is authorized by the Constitution the Justices must interpret and enforce.


The Drill SGT said...

What is that old saying?

A Lawyer that represents himself has a fool for a client.

What about a Law Prof that does the same, does that make him an even bigger idiot?

I don't think losing 8-0 has any unpside in "raising the issue" and "fighting for justice". I think it's a set back for their cause and puts Congress on notice that they have a great deal of freedom to implement policy tied to funding.

Ann Althouse said...

Drill Sgt: "...puts Congress on notice that they have a great deal of freedom to implement policy tied to funding."

No, in fact, it doesn't. The opinion is not about the use of conditional spending to extract a waiver of constitutional rights or to achieve regulatory purposes that could not be imposed directly:

This case does not require us to determine when a condition placed on university funding goes beyond the “reasonable” choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. See Speiser v. Randall, 357 U. S. 513, 526 (1958) . Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.

This is a case about how much the Constitution protects free speech, specifically when someone other than the rights claimant is doing the speaking. Don't take it to stand for what it does not.

brylin said...

I wonder what happened to Ginsburg, Stevens, Breyer and Souter?

Instead of bashing the lawprofs, can anyone provide a credible explanation for their votes?

After all, 3rd Cir. Judges Ambro and Stapleton were convinced.

Tom C said...

Isn't the lesson that if you decide to become dependent upon a funding source, that they will eventually ask things of you that might become, let us say, uncomfortable? This is not just true of colleges, of course, but of doctors/pharmacies, local school boards, etc.

As for the other justices, what seems to have happened here is that Roberts convinced everyone that the case boiled down to the piece quoted in Althouse's comment, which is effectively unassailable. I was actually struck by how deferential to all sorts of precedents the decision was, especially with regard to the one that says (paraphrase) you can't use funding to compel speech. But that's just me, and I'm not an attorney.

Bruce Hayden said...

I wonder if the differential that Tom C mentioned is in any related to how the CJ got the 8-0 decision. This was almost the opposite of some decisions where the Justices almost come out fighting.

Bruce Hayden said...

I also agree that the section that Ann quoted is key. After that, I think that it would have been difficult for a Justice to vote the other way. And, note, that it nicely limits the reach of the case, which is another reason possibly for the unanimous decision.

PatCA said...

Yale's endowment is now in the neighborhood of $16 billion. Yes, billion. They're not really "dependent," so I wonder why the lawprofs did not plead for their schools to refuse the money. If you are really taking a moral stance, shouldn't you be willing to endure the consequences?

mihjib said...

Response to Mr. Liptak's essay. To understand what went wrong with these lawyers, note Sen. Durbin's comments during the Roberts' conf. hearings. Durbin orated about how judges should expand freedom and invoked the name of the judge who, 50 year previously, had ruled that the bus boycott/Rosa Parks action could not be legally stopped.
In Sen. Durbin's political agenda/left thinking, it would not occur to him that the judge was not expanding freedom; he was merely calling the law as it existed.
Look at the statements of the Dem candidates in 2004 when asked what they would do if the U Mich affirm action cases came out "wrong" for their agendas. They talked of how they would litigate and relitigate until the right decision was reached, and they would put the right judges on the S Ct and other courts.
There is a huge arrogance of power and entitlement in these out of their belief that the general rules of statutory and constitutional construction is nothing less than pure license to achieve whatever politcal/social goal this country should live under.
They are actually very dangerous people because they do believe that the ends justify the means. The only philosophy which counts is the end result. The arguments they employ are not, in any sense rules, but merely tools for justifying their positions.
This might explain a lot of the fear many Americans feel about liberals and why the Republicans can win two national elections while putting up a sub 100 IQ moron who can not areticulate a long sentence without stumbling.
I bet alot of people reading this, even if their politics are "left", would agree with this assessment.

Ann Althouse said...

PatCa: The Solomon Amendment would remove federal funding from the entire university. Take a moment to think about what that would mean for a place like the University of Wisconsin!

tjl said...

There has been a great deal of discussion, on this blog and elsewhere, of the FAIR case in terms of the weakness of FAIR's legal arguments or the strength of FAIR's moral position. What I haven't seen is any examination of the practical results if FAIR had prevailed.
What happens if you bar the military from recruiting on campus because certain military policies offend the values of academia? You ensure that those values will not be shared by the next generation of officers.
In a democracy, it is not healthy to have a military which is not drawn from a broad range of society. If FAIR had prevailed, the result would have helped to narrow the composition of our military. I'm sure than a Prussian-style officer corps would be even less to the liking of law professors than what we have now.

Robert said...

Why should the University of Wisconsin (or any state university) be receiving federal funds at all?

Ann Althouse said...

The federal government makes grants to support the kind of research that is done here -- medical research, agricultural research, etc.

PatCA said...

"The Solomon Amendment would remove federal funding from the entire university."

Yes, the consequences would be tough. Which is why they went through the courts and did not plead their case to the university, its students, or its alums. Of course they have a right to, but it's not good PR--seems kind of small morally for people trying to make a case for a moral stand.

Wade_Garrett said...

PatCA - Careful. Many campuses, such as Yale, took a democratic vote of the student body on whether or not they should have ROTC on campus, and the students voted against ROTC. It was a transparent, democratic process, and the military lost. When that happened, all sorts of conservatives launched into the "oh, these east coast elite blah blah blah people hate their country." If our public disapproval of military policy doesn't please you, and our suing the military doesn't please you, then what do you suggest we do?

twwren said...

Ann, If there is a stong moral imperative but no legal avenue of redress (8-0), the path of change runs through the legislative branch - repeal of the Solomon Amendndment -not through the courts.

Tom C said...

21 pages of opinion basically boil down to "Congress is within its rights to pass such a law." Twwren is right on target -- elect people who won't pass such laws, even if they have the power to do so.

And, circling back to the original post, the ruling is not about justifying the military at all. I think the opinion strongly reaffirms Congress' power to raise armies. This is good news, as anything that limits the executive nowadays is welcome.

Ann Althouse said...

Oh, please. People go to courts because they think this is the kind of decision that should NOT be governed by democratic choice. To say we should go to the legislature is to beg the question whether there is a right. The litigation is ABOUT whether there is a right. We were entitled to ask a court whether there was a right. It was not a frivolous question or a naked attempt to move a political dispute into the courts.

Tom C said...

Ann, I think I agree. But once it's affirmed that Congress has the right to force the recruitment, then the only choice is electing new members or convincing the existing ones to change their minds (yah, right).

I wasn't implying that it was wrong to bring the suit in the first place. The whole thing didn't seem unreasonable to me at all. As you said earlier, sometimes you lose but there's still value in seeing clearly what the landscape looks like for the future.

twwren said...

Apparently a nerve was struck. 8-0, no concurrence and a tone of a parent scolding a child could, in fact, lead to the conclusion that the suit was frivolous.

Tom C said...

Ok, but I read the opinion as chiding the APPEALS COURT, not the people who brought suit. There's a huge difference. I'm sure losing 8-0 can make you feel as if it was a put-down, and some people will use the result to raise their relative status compared to the people who filed the suit, but (to me) this was more of a pistol-whip to the 3rd Circuit judges, not the litigants.

Jim Breed said...

Face it, liberals hate the military. In the 70s they got ROTC kicked off campus because of VietNam. Now its gays. Does anybody think that if Congress overturned DADT tomorrow that ROTC would be welcomed back to the elite campuses? I didn't think so.

This is exactly the same as the Boy Scouts. In the 70s the liberals hated us because we were just like the baby killers. In the 90s they hated us because you have to believe in God to be a Boy Scout. Now its Gays.

Liberals have always hated the institutions that make the US strong. It is not at all about Gays, it is about hating the military. The last time liberals liked the military was when Joe Stalin was on our side and they took their talking points from Moscow. Not really, but it always makes me think.
Very respectfully,

Wickedpinto said...

The prof's and such made a 1st ammendment argument, that might have been valid in terms of ideaology, I don't agree with don't ask don't tell, I have more of a problem with women serving next to men (at least in the ground forces) than I do with equally skilled, strong, and trained men, who happen to hump men fighting next to other men. So I can see some people being offended by the idea that those of equal skill (unlike CURRENTLY SERVING WOMEN!) like closeted gay men, should be accepted if they leave the closet. That is a principled stance. BUT! to say that it is a 1st ammendment issue is on it's face idiotic. I can promise you, that the VAST majority of gay men who ever served willingly and openly find this a farce!

The opposition to the Solomon ammendment wasn't a free speech position, it was an anti-military position. They didn't want to open a forum for dialogue, under the first ammendment, they wanted to squelch the opinion of the military, and deny the military, and it's representatives, their ability to speak, that includes those gay men who could have moved the ball forward.

The Gay Straight Divide in the military will not be won thanks to effete, never served arrogant F's floating around in academia, but rather by hard working sacrificing gays who stand up once they've earned distinction within the uniformed services.

I PRAY! Noone gives harvard kudo's for trying to protect their money, while homosexual men and women are sacrificing their lives for the IDIOTS to abuse the very thing they SAY they are trying to protect.

Sanjay said...

Dr. Althouse,

I think your response to Tribe that "I don't see how making an argument implies that you don't realize it's a difficult argument" doesn't make a lot fo sense --- I'm nowhere near being an academic law prof but I thought that when one says that something is a "really difficult argument" it is lawprofspeak for, "I think that's bull hockey." Isn't it?

Wade_Garrett said...

Jim Breed - What are you saying? That only people who served in the military can criticize the military? I categorically reject that reasoning. If I said that only lawyers can legitimately criticize or comment on the Supreme Court, you'd call me an elitist douchebag, and you'd be right.

Something that bugs me about all of this is the military's opacity and arrogance of power. I respect the military and admire the way in which they do work that keeps the rest of us safe. But, to take the ROTC example: they did commit massacres in Vietnam, and rather than address the problem and apologize for it and accept responsibility, they instead chose to attack the patriotism of their critics. Similarly, despite long-term recruiting problems, they systematically excluded African-Americans and women for years, and now they are systematically excluding homosexuals. Those groups cannot reform the military from within if they are not a part of the military, so the only way to attempt to reform it is from without. Groups (such an law faculties and Ivy league universities) who value diversities should be able to criticize the military without having their patriotism attacked.

Furthermore, I take issue with your implication that the boy scouts and the military at all that has made this country strong. They used to teach us that the reason America was a world leader was that it welcomed those who are outside of the mainstream and don't arbitrarily and pointless exclude minority groups simply for the sake of exclusion.

PatCA said...

I didn't know the students voted against ROTC. Fair enough. I don't know about the university administration or donors, though. As to your jaundiced view of our military, sigh, I hope you find a perfect world one day.

I can't speak to whether or not the suit should have been brought, so I'll bow out now; I'm just saying from a lay point of view, it looks bad.

AlaskaJack said...

The law professors' argument was "difficult" not because it was complex and hard to understand, but because it was unpersuasive. It required the professors to convince the Court that they shared important characteristics with school children, parade organizers and Boy Scouts. A dufficult task to say the least.

Does anyone know how this litigation was funded? Did the law professors pass the hat around or were University funds used?

Ann Althouse said...

I don't know how it was funded, but we weren't asked for money. We were only asked to vote as a faculty to be included among the plaintiffs. I remember the main topic of discussion being whether there was any such entity as the "law school faculty." That is, there's the law school, but is the faculty a separate entity or just individuals? Other than that, our support was not based on the legal arguments but on the cause itself. It was left to the lawyers handling the case to make the best arguments. We didn't put our names in because of our analysis of the legal issues.

Wickedpinto said...

and if the "Law School Faculty" were a unique entity allowed to have supremacy in their articulation of 1st ammendment rights, why doesn't "the military" have the same rights? especially when EX military are more volumonous than EX law school faculty? It seems almost like the government funded Law School Faculty, is saying that they are More independant than the Government funded Military.

Thats a conflict of At BEST equals, in which case, the argument for silence is the loser.

Ann Althouse said...

Wickedpinto: You begin with a faulty premise. A litigant making an argument to a court isn't claiming to have final authority to interpret the law. The court has the final say.

gj said...

Ann -- is it possible that this unanimity of decision reflects a change of culture in the Roberts Court as much as anything having to do with the case itself? One of the things you blogged about very eloquently when Roberts joined the benched was your hope for a decrease in the number of concurring opinions. That seems to be happening.

(This was my way of providing solace to a friend at BC who put a lot of work into the case.)

Ann Althouse said...

gj: Yes. I said that in an earlier post.

Jim Breed said...

Where do you get that I said only miitary can criticize the military?

Congress made DADT established law. The military, under civilian control will follow this law until it is repealed. What don't you understand about THAT?

The Boy Scouts and the military are certainly among the foremost voluntary organizations that have made the US a strong nation.

To restate my thesis. It is not merely about gays. Liberals in general, and college educators in particular, do not like the military. They would have found another way to try to stick it to George Bush if Nathan Lane were promoted to CJCS (Chairman Joint Chief of Staff).

The Boy Scouts were my supporting example. Liberals have hated the Scouts for as long as I can remember. They have siezed on ANY pretense, no matter how flimsy, to make life difficult for the Scouts.

Very respectfully,

Wickedpinto said...

Madam Anne? Wickedpinto: You begin with a faulty premise. A litigant making an argument to a court isn't claiming to have final authority to interpret the law. The court has the final say.

If the litigant wins, will their opinion not be the dominant one?

In this case the litigant was the minority, and in this case the litagant was hoping for dominance, not only in ruling, but in opinion, they would suppress the opininions and actions of something in the neighborhood of 30 million people? Yes, in THIS case, the litigant WAS not just requesting but DEMANDING because they acted before the first judgement, that their opinion be not just dominant, but exclusive.

twwren said...


Are you saying that, as a faculty, you just supported the "cause"; you did not agree with the legal analysis and did not put your names in because you believed there was no supportable constitutional or statutory argument?

Ann Althouse said...

Wicked, re your last comment: Yeah, that's how rights work. Why are you acting astounded by something so ordinary?

TWWren: I do not remember much discussion of what the legal theories would be. We joined as parties. We were not acting as the lawyers. We were defending a policy we wanted to follow, and it was up to the lawyers to develop the legal arguments.

twwren said...


I guess I was confused because of your statement: "We didn't put our names in because of our analysis of the legal issues."

josil said...

Ann-would you continue to sign up for the cause if the University decided to stand on principle and live without federal contributions? and how would you reconcile a personal adherence to principle if it came at the cost of fellow faculty members livelihood? i've noted that principles are easily held when there is no cost to their adherence.

Ann Althouse said...

twwren: Sorry, that was ambiguous. I just meant that the legal analysis played almost no role in the decision to join the group of parties.

josil: The amount of money involved was utterly coercive. There was not one person who would have voted for that.

twwren said...

Now I understand.

A legal analysis played virtually no role in a law school faculty's decision to join a lawsuit, the premises of which is that the amendment in question was unconstitutional and was contrary to proper statutory construction.

This intervention is supportable for policy reasons alone.

Simon said...

The fallout in the academy is starting to look ever more like a scene from Monty Python and the Holy Grail, with the academy cast as the black knight. It's as if they're in denial that they lost eight to nothing! They lost the vote of John Paul Stevens! They lost the vote of Tony Kennedy! They lost the vote of Steve Breyer! They lost the vote of Ruth Ginsburg! This isn't some 5-4 that you can blame on an evil conservative bloc on the court, it was the unanimous opinion of the court, a court which includes some pretty liberal members, that - not to put too fine a point on it - FAIR was full of shit. This is a court which includes members who believe that keeping someone on death row for extensive periods is unconstitutional, but letting him file repeated habeas petitions which KEEP him on death row for extensive periods is perfectly fine! This is a court with a liberal majority, yet the court UNANIMOUSLY ruled that FAIR could not have their cake and eat it...

And yet the law professors are still hopping around a la Cleese, crowing "c'mon, I'll have you! I'll bite your kneecaps off!"

It is a perfectly constitutional policy, and I will complete my comments with a list of the schools which are going to put their money where their mouth is and put their funding on the line for what they say their believe:



Simon said...

"The Solomon Amendment would remove federal funding from the entire university. Take a moment to think about what that would mean for a place like the University of Wisconsin!"

Principle without sacrifice is scarcely principle at all.

Jim Breed said...

I have not heard any FAIR supporters attempt to defend the really ugly anti-military bias that is at the root of their actions. If you want proof of this, go to

"The Supreme Court's opinion in Rumsfeld v. FAIR is a call to arms to law school administrations across the country to vocally demonstrate their oppostion to the military's "Don't Ask, Don't Tell" policy."

Note that they don't call for demonstrating when Congressmen visit, only JAG recruiters. The JAG's only recourse, if they oppose DADT is to resign. They would then forfeit a larger portion of their income than the universities would had they the courage of their convictions.

If I found out that my state university were guilty of organizing the anti-mil protests suggested by Solomonresponse, I would live blog it and pressure defunding of the U by my state reps. That would not play well in KS where I live or MO where I went to school.


Ann Althouse said...

Jimbo: I assure you that the discussion we had at the University of Wisconsin Law School was entirely about opposition to discrimination against gay persons and holding to a uniform apporach to all employers. There were no anti-military remarks other than the opposition to DADT. If anyone had wandered into generic anti-military arguments, there were people in the room, including me, who would have reacted strongly.

As for protesting the recruiters, this is free speech, and the Justices themselves have recommended more speech by the law schools as the correct response (rather than excluding the recruiters).

dick said...

I guess I must be just a bit obtuse but I thought the whole case was a fool's errand. The Universities were demanding that the military specifically reject a law passed by the Congress and signed by the president 10 years or so ago which stated that the military must implement a "don't ask, don't tell" policy. Since the law was the position of the Congress in laying out the policy of the military just what did the law profs hope to prove. Apparently they were hoping to get the court to agree with them that because the military did not meet the wishes of the universities, which do not have control over the military, but did meet the wishes of the congress, which does have control over the military. If they did this then the universities would have their cake and eat it also.

The court did not agree. Will the law professors now do what they should have done in the first place and try to get congress to change the law or is it more important for the professors to continue showing just how much they hate the military by trying to get the recruiters exiled from the campuses in some other way.

Either way it just does not make any sense to have put in time on this case unless the universities enjoy going "neener, neener" and keep on showing how much they hate the military. Big shame in my opinion. There are so many things worth fighting over and this just does measure up in any way, shape or form.

AlaskaJack said...

I have a simple question. I'm told that hetrosexual men and women in the military do not share the same living quarters because the sexual attraction between men and women would destroy unit cohesiveness. If gays (men who are sexually attracted to other men and women who are sexually attracted to other women) were actively recruited into the military without question, would they have to be housed in separate living quarters so as to maintain unit cohesiveness?