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.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.
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."
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.
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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.
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.
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.
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.
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?
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!
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.
Why should the University of Wisconsin (or any state university) be receiving federal funds at all?
The federal government makes grants to support the kind of research that is done here -- medical research, agricultural research, etc.
"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.
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?
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.
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?
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.
Terry,
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.
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?
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: 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: Yes. I said that in an earlier post.
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: 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.
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:
.
End.
"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.
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).
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?
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