The Right Coast

March 13, 2006
Why Did the Law Professors Get Shutout?
By Mike Rappaport

Ever since the Solomon Amendment case was decided 8-0 in favor of the military and against the liberal law professors, I (like others) have wondered why the professors lost so badly. Why didn't the liberal law professors even get a single vote from the liberal wing of the Supreme Court. They got dissed by Stevens, Ginsburg, Souter and Breyer.

David Bernstein quotes from a New York Times story exploring the question:

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.
My guess is that both Eskridge and Schuck's explanations might be necessary to explain what happened. Schuck is right that the liberal law professors' ideology got in the way of their analysis. Anyone familiar with the professors' discussion of these matters can confirm that they considered it a moral imperative, not a legal issue to be analyzed.

But I think there is more to the resolution. Professor Eskridge was able to win at the Supreme Court in a case where there was arguably even less legal basis for his side: In Lawrence v. Texas, Eskridge and others were able to persuade the Supreme Court to hold laws against same sex sodomy to be unconstitutional. If the liberals could win there, when they had nothing but their moral principles on their side, why not here?

In the end, I think the liberal justices on the Supreme Court believed that there was not a moral imperative on this matter, as they seemed to believe about the Texas sodomy case. They also might have believed that the nation would not necessarily be sympathetic to what might be viewed as an attack on the military. So Eskridge, in a convoluted way, might be right: the Supreme Court (or at least the liberal justices) was influenced by the popularity of the military and its mission in the war on terror. That didn't lead the justices to ignore the law; but it may have led them not to ignore the law in the service of their moral views.