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.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.