The Supreme Court in a unanimous 8-to-0 opinion (Justice Samuel Alito not participating) reversed a Third Circuit 2-to-1 ruling overturning on First Amendment grounds the Solomon Amendment, requiring law schools to give the same access to military recruiters that they give to other recruiters. Chief Justice John Roberts's decision is relatively brief, elegant, occasionally witty, and enormously persuasive. The claim that law schools' First Amendment rights to self-expression are infringed by requiring that military recruiters have access to students was always risible. The plaintiffs, an organization of law school teachers and the like, tried to hitch a ride on the Supreme Court case allowing the Boy Scouts to bar homosexuals. Nice try, but absolutely no cigar.
This opinion was clearly the product of Roberts's own writing, not a draft produced by law clerks and edited a bit by the chief justice. It's clearly similar in tone and style to his D.C. Circuit opinions, which contained bits of drollery similar to this:
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. [Citations omitted] Surely students have not lost that ability by the time they get to law school.
Last summer I speculated in a U.S. News column that Roberts, if confirmed, would do much to redefine what is mainstream in our jurisprudence. He seems to be doing that here. Over at National Review Online's Bench Memos, Ed Whalen speculates:
"The emerging story of this Supreme Court term would appear to be how many supposedly controversial cases have yielded unanimous opinions. A honeymoon for Chief Justice Roberts? A testament to his leadership? Or something else?"
Those were the days when Supreme Court justices had at most one law clerk. Today they are entitled to four. That, I argued in this column, has contributed to the proliferation of separate concurring and dissenting opinions that has made Supreme Court jurisprudence well nigh impossible for ordinary intelligent citizens to follow. I ended the piece as follows:
"I have hopes that a Justice John Roberts might reduce the reliance on law clerks, though he was one himself. Roberts clearly knows his own mind and is capable of drafting his own opinions. He has served on the D.C. Circuit on which former Chief Judge Harry Edwards and his successor, Douglas Ginsburg, have encouraged unanimity and discouraged dissents and separate concurrences. In cases Roberts has heard, there have been few separate opinions.
"Moreover, Roberts, while showing respect for differing views, has shown a penchant for making crisp decisions and enunciating clear rules. Let's hope he and the other justices put the clerks in their place."
That's what Roberts seems to have done in Rumsfeld v. FAIR. He's only one justice out of nine, but he evidently succeeded in producing a crisp opinion to which none of his colleagues felt obliged to append a separate opinion. And perhaps he has helped to produce on the Supreme Court the collegial atmosphere that more than a few judges there have told me has prevailed for some years on the once famously fractious D.C. Circuit. That collegial atmosphere, by all the accounts I've heard, owes much to former Chief Judge Edwards, who was appointed by President Carter, as well as to Chief Judge Ginsburg, who was appointed by President Reagan. Chief Justice Rehnquist, for all his many virtues, started off on the Supreme Court as a frequent lone dissenter and as chief justice was never able to encourage, or was perhaps never interested in encouraging, single opinions in the mode of Chief Justice Taft and Chief Judge Edwards. Yesterday's opinion is a sign that Chief Justice Roberts may be doing so.
The military policy that the law schools object to is the ban on homosexuals in military service. As Roberts's opinion points out, that policy was the result of legislation passed by Congress and signed by the president (President Clinton, in fact). The law schools' real beef is not with the military, which rightly follows orders, but with Congress. A serious argument can be made that that policy should be changed; here such an argument is presented by Ed Morrissey of the Captains Quarters blog.
"Let's end the hypocrisy and admit that gays have made good soldiers, sailors, and airmen in the past and present and could contribute to our national defense in the future," Morrissey concluded. "Addendum: I expect to get pilloried on this one, so feel free to fire away in the comments section." I took a look at the comments section and found many commenters agreed with Morrissey and that those who disagreed seem to frame their arguments respectfully, basing them in many cases on personal experience. Not the sort of flaming hatred you find in so many comments on www.dailykos.com.
Meanwhile, while the law professors at Yale, among other universities, preen themselves on opposing the evil military for giving homosexuals no harsher a penalty than a general discharge, Yale College has admitted as a student a former spokesman for the Taliban, which threw homosexuals into ditches and then had concrete walls bulldozed over them. The hypocrisy of the academic elite is repulsive: The only common theme is a dislike for America.
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