March 12, 2006


U.S. Military: 8 Elite Law Schools: 0: How did so many professors misunderstand the law? (Peter Berkowitz, 03/20/2006, Weekly Standard)

CHIEF JUSTICE JOHN ROBERTS'S UNANIMOUS opinion for the Supreme Court in Rumsfeld v. Forum for Academic and Individual Rights, upholding the constitutionality of the Solomon Amendment against challenge by a coalition of law schools and law faculties, decisively resolved the essential legal issues presented by the case. The 8-0 decision (Justice Alito did not participate) made matters crystal clear: Congress, without infringing law schools' and law professors' First Amendment rights of speech and association, may condition federal funding to universities on law schools' granting access to military recruiters equal to that provided other employers. The Solomon Amendment leaves law schools perfectly free to keep the military off campus and away from their students--if they can persuade the universities of which they are a part to decline the millions, sometimes hundreds of millions, the universities receive in federal funds.

However, 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? [...]

With their legal arguments publicly and authoritatively eviscerated by Roberts's opinion, what was the response of FAIR's attorneys and the company of distinguished law professors enlisting in the cause? Joshua Rosenkranz, who represented FAIR, told the Washington Post that the law schools always saw the suit as a "scrimmage in a broader war" about equality--a revealing remark from an attorney who had just suffered a dreadful defeat in a high profile First Amendment case.

His view about political motivations was echoed by Dean Harold Koh, who concluded his statement in reaction to the Court's decision on the Yale Law School website by declaring that, "We look forward to the day when the government gives all of our students--without regard to their sexual orientation--an equal opportunity to serve our country by working in our Nation's armed forces." And the decision provoked a defiant response at a website in support of FAIR hosted by Georgetown Law School ( "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 opposition to the military's 'Don't Ask, Don't Tell' policy."

But if their aim all along was to secure the right for homosexuals to serve in the United States armed forces on terms equal to those of heterosexuals, why did the law professors divert attention for almost three years, during wartime, at a cost to the government that likely ran into the hundreds of thousands of dollars, to imaginary infringements of faculty First Amendment rights?

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.

No one who's been to law school will be surprised that they thought the Court just another political forum rather than a place to decide cases on their constitutional merits.

Posted by Orrin Judd at March 12, 2006 9:03 PM

Having been to law school, I agree with your assessment, o.j. They wanted it their way because it would be the way they approved, and the law could go hang.

Posted by: Mikey at March 13, 2006 7:58 AM

Of course, this may explain why they are professors, not working counsel. As professors they can retain their nice, warm coccoon and ignore the ignorant display of the Supreme Court. If they were working counsel, they'd have an irate client who would demand an explanation after such a legal beating.

Posted by: Mikey at March 13, 2006 10:38 AM