Redstate

commenters, including me, that this decision is in fact much more sweeping than we originally thought, which it makes it all the more astounding Roberts was able to pull off a unanimous decision.  He not only affirmed the Solomon Amendment, which alone would have made it a narrow ruling, but also got all 7 other justices involved in the case to agree that the First Amendment is essentially irrelevant to the question of what lengths Congress can go to in order to raise and support the armed forces.  Even Ginsburg, a former ACLU top counsel, agreed!  I think we're seeing, at least in the first few months, a sharp turn away from the politics that characterized the Rehnquist court back to a commitment to the rule of law and the text of the Constitution.  Hats off to Roberts.

Congress actually has the authority to carry out one of its enumerated responsibilities without being stymied because of someone's hurt feelings.

Stepping back in time, or looking at the long history of Western higher education, it is surprising to me that universities have drifted so far from their calling.

While challenging accepted norms has always been part of a university's unwritten mission, the leftist occupation of university administrations has taken it to absurd ends.

Whether it's labelling Native American symbols as "racist" and saying that they inspire "hate", or actively opposing military education, the politically correct Birkenstock crowd shows an inability to follow common sense when symbolism avails itself.  They seem captured by the need to make a symbolic stand on whatever issue they can find or manufacture.

...but is it just possible that we may be witnessing the beginning of an era of actual leadership from the Chief Justice of the United States?

Here's hoping and praying...

I'm fairly certain it would be a mistake to construe the decision that broadly. The 1st still limits Congress, even while exercising enumerated powers. The 1st wasn't irrelevant in this case; rather, the law didn't violate the 1st because it regulated conduct rather than speech.

the decision says that Congress has "broad and sweeping" authority to raise armies and navies.

It pointedly says: But the fact that legislation that raises armies is subject to First Amendment constraints does not mean that we ignore the purpose of this legislation when determining its constitutionality; as we recognized in Rostker, judicial deference . . . is at its apogee" when Congress legislates under its authority to raise and support armies.

Seems to me that it is difficult to understate the significance of this case considering it was a solid 8-0 without separate concurrances to muddy the waters.

that Congressional power in that arena is broad, the 1st still apples. The entire 2nd half of Roberts's opinion addresses the question of whether the legislation violates the 1st. The law is upheld not because the 1st is irrelevant, but because the law doesn't violate the 1st. The 3rd section of the opinion addresses and rebuts all the violations of the 1st that the circuit court found. On the basis of those violations the circuit court overturned the law. By rebutting those violations, Robertst says the law doesnt violate the 1st, not that the 1st is irrelevant.

the 1st "applies." sorry for they typo.

to read it that way if you wish. I can't stop you. I simply think it is an uphill battle making your case because they say more than anything else that the First Amendment can't be violated in these circumstances.

Because they pointedly make an exception for institutions not receiving federal money, they seem to say that government money can buy government speech.

The doesn't so much rebut the arguments as dismiss them. Check the page count on the opinion.

The law was upheld "[b]ecause Congress could require law schools to provide equal access to military recruiters without violating the school's freedom of speech or association." Last paragraph of the opinion. If Congress attempted to further its power to raise armies in a law that did violate the 1st, that law would still be unconstitutional.

That said, perhaps this is no more than my incorrect reading of the case.

Streiff, you're right to focus in on the fact that the Court went out of it's way to state that Congress has broad power to raise armies and provide for the common defense.  It's a point that many commentators missed (although, to my knowledge, it's not a particularly controversial one).  I also think that you and Phiddippides are, in part, talking past each other.  But I think you are reading a bit too much into the opinion.  You right:

I simply think it is an uphill battle making your case because they say more than anything else that the First Amendment can't be violated in these circumstances.

No, not exactly.  The ruling here is that the Solomon Amendment did not violate the First Amendment because it did not restrict speech.  The Court did not hold that any regulation by Congress relating to its Constitutional powers to provide for the common defense cannot violate the First Amendment.  Indeed, the Court pretty much stated the exact opposite, by noting that a law school is perfectly free to express disapproval of the military's "don't ask, don't tell" policy, even to the extent of organizing protests of JAG recruiters and/or putting up notices by the JAG recruiters' table to the effect that the school dispproved of the military's policy on gays.  Such things would be speech and well-protected by the First Amendment -- despite Congresses considerable power to provide for the common defense.

That said, I think that the days of the don't-ask-don't-tell policy are numbered.  The IDF accepts openly gay soldiers, and I don't think that anyone can say that it eroded their fighting effectiveness.  (Same with the Brits.)  

While plenty of students were exercizing their 1st Amendment rights to protest 'Nam, our local ROTC chapter was banished to "new" offices under the bleachers of the football stadium.  That put their voices comfortably over a mile away from main campus.  Thus began that "forty years of organizations ... inimical to the interests of the United States..."

It is just soooo hypocritical that organizations in favor of "equal rights" for every disparate voice under the sun can't seem to bring themselves to giving the same rights to the military and military recruiters on campus.

I'm glad the Supremes finally put this one to bed.  

You write, not you "right."

I give up.

streiff,

You're over-reading the case.  The Court clearly decided that the Solomon Amendment didn't violate the First Amendment rights of the schools, and then reversed the Third Circuit.  It's on the last two pages: "Because Congress could require law schools to provide equal access to military recruiters without violating the schools’ freedoms of speech or association, the Court of Appeals erred in holding that the Solomon Amendment likely violates the First Amendment. We therefore reverse the judgment of the Third Circuit..."

That sentence plainly implies that, had Congress violated the schools' freedoms of speech or association, the Solomon Amendment would have been unconstitutional, even if it was an exercise of a core power.

http://www.firstamendmentcenter.org/analysis.aspx?id=16603

1. Again I'm not a lawyer but it seems to me the whole "noting that a law school is perfectly free to express disapproval" is just the losers' spin on this (I say that because that is the spin on FAIR and Columbia's websites) as no one ever said they had to approve. AFAIK DoD/Congress never said you have to like having recruiters, only that you have to give them the same access that you give your preferred recruiters. They were free to protest before they sued and no one really cared if they protested.

This issue was never a First Amendment issue and I think the Supremes demolished that argument conclusively. The fact that all these law profs couldn't get even Stevens or Ginsberg to agree with a single point is telling.

Which leads to the second point. They set the bar very high for anyone to make a constitutional claim that raising an army or navy is in anyway constitutional. Let's face it, they already allow a draft and that is much more an affront to the plain language of the Constitution than protesting another law made under an enumerated duty of the Congress, to wit, "To make Rules for the Government and Regulation of the land and naval Forces."

So you may be right, but I don't think one can read this decision and divine any way to, other than by resorting to a clause or two, that the Supremes gave the First Amendment argument any consideration beyond saying it was conceivable that Congress could overreach in carrying out this duty but even then their decision deserved a great deal of deference.

is that it focuses solely on what the Court held vis-a-vis the Solomon Amendment and ignores what the court said about direct imposition of Congress's Article I authority:

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.

In other words, Congress need not have even given universities a choice between funding and recruiters, it could have directly imposed on campuses the requirement to allow recruiters on campus, giving professors and students opposed to the military (for whatever reason) no choice at all in whether recruiters would be allowed on campus.

When I said above that this decision rendered the First Amendment irrelevant with regards to Congress's Article I authority to raise and support armies, I was perhaps being a little too broad.  What it does is interpret the First Amendment guarantees of freedom of expression and association much more narrowly than especially the liberal bloc of the court have typically gone along with.  The reason for this is the classic court doctrine of deference, but I'd have expected at least one dissent from the liberal bloc on the lengths to which deference can justify violating the expanded reading of the First Amendment that they prefer.  By limiting his reading of the First Amendment to speech, and not "expressive conduct," I believe Roberts has set a precedent which will have an impact on future cases, and that includes cases that don't necessarily deal with the military.

But Roberts doesn't overrule all the cases protecting expressive conduct. Rather, he argues that those cases held the 1st protected conduct that is "inherently expressive," and holds that the law schools' conduct--recruiting access--was not inherently expressive. Other conduct--such as flag burning--would still be protected under his interpretation of the 1st, so long as it is inherently expressive.

as though many on this site are giving Chief Justice Roberts at least a little too much credit in this ruling.  While he did a good job hearing the case and writing an opinion he is no some incredibly powerful man (i saw a star wars reference in another post about this) who was able to somehow convince the "crazy psychotic liberals" on the court to agree with him.

It is simply a case of this is what the law says, and we all agree on that.  Remember unanimous SCOTUS rulings are not all that uncommon, it just usually doesn't happen on high profile cases.

that this opinion does have a lot of subtle threads that we will see again throughout 1st amendment jurisprudence.

I would also agree that it is significant that the Court reminded us that Congress has enumerated power to raise and maintain an army, independent of its spending powers.

Remember unanimous SCOTUS rulings are not all that uncommon, it just usually doesn't happen on high profile cases.

I rest my case.

which is why I am saying this is not a First Amendment case as no one was challenging freedom of speech or expression.

The best issue that I thought they raised was the freedom of association issue arising from Dale.

It doesn't say that at all.

It says what it says, that the decision did not violate their rights, not that those perceived rights, had they been infringed upon, would have had greater weight than Congress' power to raise armies.

To the contrary. They state clearly that if the issue is in doubt that Congress gets the nod.

They further make it very clear, it seems to me, that through use of the Spending Clause the government could do a lot more than it has because the institution always has the option of not taking the funds.

So I don't agree in any generality or particular.

give him credit for is that it was one opinion in which all justices agreed in all particulars.

It was riven with separate concurrences or partial concurrences and it is a very unequivocal opinion. Quite honestly I am astonished that Ginsberg, in particular, agreed with large parts of this.

I think we've gotten so used to the Rehnquist court and its 5-4 decisions that we have forgotten how the court normally functions. More decisions like this would sure go a long way toward depoliticizing the court.

that his private sector job for the past decade was to convince these same 7 Justices to side with him.  He's almost overqualified to be Chief Justice.

In other words, Congress need not have even given universities a choice between funding and recruiters, it could have directly imposed on campuses the requirement to allow recruiters on campus, giving professors and students opposed to the military (for whatever reason) no choice at all in whether recruiters would be allowed on campus.

Yes, of course.  I don't dispute that at all and, without having given it much thought, agree with the reasoning embodied in it.  Congress has far broader power than it chose to exercise, here.

My point to Streiff is simply that the FAIR decision does not grant Congress the right to override the First Amendment.  The FAIR decision expressly holds that the conduct regulated here by the Solomon Amendment is not speech, and therefore not within the First Amendment's scope.

I think you make an excellent point.

For instance nobody gets to cry constitutional violation with the requirement to register with selective service, even if they think the military is descrimanatory.  If the draft was fully reinstuted, there also wouldn't be any basis.

It appears to me the bar was set so high, that I honestly can't think of a way a college or university could deny recruiters access under this ruling.

to Roberts' leadership-it appears that he wants to persuade justices to come to an agreement, where Rehnquist may have just agreed to disagree and assigned a justice to write the majority opinion.

I am not convinced we will continue to see unanimous decisions on all the cases-but I do think you are right that having unanimous ones tends to take the politics out of the decisions.  The anti military liberals can't point a finger at the "conservative" justices and scream activism in this case.

I am not so convinced on the abortion issue, we will see next term, when the partial birth abortion case is argued.  But I don't see Roberts persuading Thomas or Scalia to the pro choice side, nor do I see Ginsberg, Stevens or Souter being persuaded to the pro life side in that case-although I could be wrong.  I do think Kennedy and and maybe Breyer are-depending on just how far the court takes the decision in that case (I strongly suspicion that it is going to majorly revisit and revamp the whole "health" exception issue, and probably do a roll back to some degree on that one, so that late term abortion can be more easily restricted).

the decision.

I would have thought to see a concurrence or partial dissent from the more liberal jurists.

And your point, exactly, is what?

The recent history, or histrionics, of SCOTUS decisions has little to do with "what the law says".  That's the centerpiece of the current debate on the courts.  At least three of the Justices who signed on to all aspects of this decision are rather famous for findings that rely more on the "feelings" of the Justice than "what the law says".

Roe or Kelo would serve as examples.

While I think it's way too early to hurt ourselves with self induced back-patting, this decision is, I think, in many ways the portents of good things to come from the Roberts Court.  We'll see, but I for one am encouraged.

nor do I see Ginsberg, Stevens or Souter being persuaded to the pro life side

Overturning Roe is specifically NOT a "pro-life" statement by the SCOTUS.  That event will not "outlaw" abortion or "return us to a time when women died in back alleys".  It will simply recognize that the Court, in 1973, wrote a decision from whole cloth not the Constitution of the US.  It can specifically be framed as a return to the "rule of law" as opposed to the "rule of opinion".

In that framework, Roberts and Alito may - MAY - be able to persuade one of the more liberal justices to concur that their business is, in fact, the LAW not their opinions.

"It doesn't say that at all"?

That's incredible; it says exactly that, which is why I quoted directly from the language of the opinion.  

Your reading defies common sense, because the court made mention of the non-infringement of the schools' speech multiple times, and court explicitly said that Congress could impose almost any conditions because the schools were free to speak under any circumstance.

streiff, if the opinion had said what you wish it had said, the opinion would not have been unanimous.

abortion is outlawed, but an overturn of Roe isn't going to make any of the usual suspects on the pro choice side happy or feel the love.  I used pro life, because it was easier to say.

But either way, I don't see Ginsberg, Stevens or Souter all that persuadable-especially given their previous decisions on abortion restriction issues.

and I'm reaching...

However, I think there is a reasonable argument to be made that one or more could support.  Not likely, but maybe...

to the decision in Rumsfeld vs FAIR.

Before anyone goes off the deep end, I specifically did not say Free Speech is Irrelevant.

The Solomon Amendment did not attempt to regulate free speech.  The statute placed restrictions on receipt of federal funds, and based those receipts on certain regulated conduct.  The Third Curcuit Court of Appeals erred because it chose to address the Solomon Amendment as a free speech issue.  They were wrong.

Under Chief Justice Roberts' guidance, the Court approached this case in its proper perspective: (1) The compelling need of the military.  (2) The constitutional authority of congress to regulate spending.

I want to see the JAG file to recover all the funds illegally recieved after certain (every single one of those who did not comply with Solomon) schools fell out of compliance, but continued to recieve the pork.

Every single $.

does yours.

You cherry pick a stray clause or two and suddenly you are the authority on this, eh?

So you picked up on the fact that there was no First Amendment issue. Good for you. That is a good start.

Did you pick up on the reference to Article I powers, of course not, because it was only the subject of the story and not included in your talking points.

Did you pick up on the reference to Congress executing its powers under Article I would be given greater deference than those under the Spending Clause? Of course not, because that wasn't a setting on your Talking-Point-o-Matic™.

Did you pick up the part on the part where they said there was no need for Congress to have used the Spending Clause? Nope. Missed that too.

Did they say anywhere that given a conflict between the Article I powers and free speech that free speech would win? No they didn't. They didn't even intimate that. The best you can muster is that they acknowledge there could conceivably be a case where Congress could overreach in carrying out its duties. Considering we have the Selective Service Act I think you have a high mark to meet to come up with an instance where that could happen.

Look, if you want to say my reading defies commonsense at least have the energy to have read the decision and the guts to confront the arguments. You've avoided doing both here. Don't hide behind your talking points and ignore the entire subject of the story and your alleged knowledge of how the court would have voted because that marks you as an extraordinarily unserious person.

from time to time. But at least we will no longer have swing vote O'Connor as the most power member of the court.

On the downside, we'll have fewer Scalia dissents. Those were always fun.