New York Times

March 12, 2006

Ideas & Trends

Supreme Court Smackdown!

By ADAM LIPTAK
 
HUNDREDS of law professors at the nation's finest law schools, representing the all-but-unanimous views of the legal academy, filed a series of briefs last year on one side of a Supreme Court case. On Web sites and in lecture halls, the professors spoke out about the case, which they called a crucial test for gay rights and free speech.

Marshalling their collective intellectual firepower and moral outrage, the professors, from Harvard, Yale and elsewhere, made it sound obvious: Universities should be allowed, they said, to take government money but oppose the military's policies on homosexuality by restricting military recruiting on campus.

On Monday, the best minds in the legal business struck out. The vote was 8-to-0 against them — a shutout, a rout, a humiliation. It is one thing for liberal academics to fail to persuade conservative justices like Antonin Scalia and Clarence Thomas. But the law professors did not produce so much as a sympathetic word from liberal justices like Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. (The newest justice, Samuel A. Alito Jr., did not participate.)

And if the result was not embarrassing enough, there was also the tone of the court's unanimous decision, written by Chief Justice John G. Roberts Jr. In patient cadences, the kind you use in addressing a slightly dull child, the chief justice explained that law students would not assume that their schools supported the military's "don't ask, don't tell" policy if they saw military recruiters on campus.

"High school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so," he wrote. "Surely students have not lost that ability by the time they get to law school."

In fairness, the professors had persuaded two of the three judges who heard their case in the federal appeals court in Philadelphia. And that's why a few are scratching their heads. E. Joshua Rosencranz, who represented the law schools in both courts, said the drubbing was a mystery.

"I've heard numerous hypotheses," Mr. Rosencranz said. "Of them, the only one that seems utterly implausible is that three dozen law schools, 900 law professors, the court of appeals, and a dozen top law firms are all inept at connecting the dots of Supreme Court precedents."

Others offered their own theories.

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.

The elite law schools have for decades been overwhelmingly liberal, Professor Schuck said, and that may have blinded professors to problems with their arguments. Only one law school brief, organized by members of the faculty of George Mason University School of Law, supported the military.

"If you put together a Vietnam legacy, a gay rights ideology, the idea that courts can solve all problems and the legal academy's echo chamber, you get this result, " said Joseph Zengerle, an adjunct professor at George Mason who helped write the brief.

Mr. Rosencranz said his side had nothing to apologize for. "The lopsided vote does not detract from the wisdom or judgment of the legal academy in pressing the case," he said. "Nor does it change the ardent view that what the military is doing is wrong, even if the Supreme Court found it permissible."

But the second-guessing has started.

"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."

Mr. Tribe, along with some 40 colleagues, also filed a brief on the losing side, but one focusing on the statute at issue, the Solomon Amendment, rather than the Constitution. They said the law itself allows law schools to bar the military for discriminating against homosexuals so long as the schools bar all employers who do so. This argument, Mr. Tribe said, was "fairly plausible."

Professor Eskridge disagreed. "The statutory argument was an easier 8-0 than the constitutional argument," he said.

The court did not say which argument it liked less. It rejected both, unanimously.