U.S. Military: 8, Elite Law Schools: 0

This essay originally appeared in The Weekly Standard.

CHIEF JUSTICE JOHN ROBERTS’S UNANIMOUS opinion for the Supreme Court in Rumsfeld v. Forum for Academic and Individual Rights, upholding the constitutionality of the Solomon Amendment against challenge by a coalition of law schools and law faculties, decisively resolved the essential legal issues presented by the case. The 8-0 decision (Justice Alito did not participate) made matters crystal clear: Congress, without infringing law schools’ and law professors’ First Amendment rights of speech and association, may condition federal funding to universities on law schools’ granting access to military recruiters equal to that provided other employers. The Solomon Amendment leaves law schools perfectly free to keep the military off campus and away from their students–if they can persuade the universities of which they are a part to decline the millions, sometimes hundreds of millions, the universities receive in federal funds.

Lacking the Wisdom of Solomon

This essay originally appeared on NRO.

On Tuesday (December 6), the Supreme Court will hear arguments in Rumsfeld v. FAIR, a case that pits a broad group of law professors against the federal government and raises critical issues about national security, constitutional law, and the role of the university in a free society.

Democratizing the Constitution

This book review originally appeared in Policy Review.

Stephen Breyer. Active Liberty: Interpreting Our Democratic Constitution. Alfred A. Knopf. 161 pages. $21.00.

The struggle over the Supreme Court is a high-stakes contest, though how the sides differ and what they share frequently gets lost in the shuffle.

The Court, the Constitution, and the Culture of Freedom

This essay originally appeared in Policy Review.

It is not controversial to contend that in the United States, constitutional law serves as a decisive battleground in the struggle over freedom’s moral and political meaning. It is another matter to assess the impact of the battleground on the battle, to clarify the current balance of power, and to anticipate the battles to come.

Bush v. Gore Comes Back

This essay originally appeared in The New York Sun.

As if the flames of Bush hatred were not burning brightly enough, the October issue of Vanity Fair seeks to fan them by revisiting Bush v. Gore, one of their original sources, and providing more proof that the U.S. Supreme Court’s momentous opinion was a crude partisan act. The scoop in “The Path to Florida” involves the decision by a number of the law clerks for the dissenting justices – and a few clerks for the more conservative justices – to break their solemn signed vows of confidentiality and speak for the record, though anonymously, about the court’s internal deliberations.

Two out of three ain’t bad

This essay originally appeared in The Weekly Standard.

GIVEN his constitutional role as commander in chief, with principal responsibility for the nation’s security, the president might be expected to overreach occasionally in times of war, to place the energetic defense of the country ahead of the meticulous safeguarding of civil liberties. Equally, given its constitutional role as guardian of the fundamental laws of the land, the Supreme Court might be expected to patrol zealously the boundaries established by the Constitution for the protection of individual liberty, and occasionally even to go to an extreme to ensure that the executive respects them. And as a consequence of the wartime contest between the executive and the Court, as each seeks to advance the interests and uphold the honor of its constitutional office, one could reasonably hope that both national security and civil liberties would be given their due to the extent possible.

The Lawfulness of the Election Decision: A Reply to Professor Tribe

This essay, co-authored with Benjamin Wittes, originally appeared in the Villanova Law Review 256, 2004.

Colleges must not be above the law

This essay originally appeared in The Chronicle of Higher Education.

Nobody has a right to tenure. But every candidate for tenure has a contractual right to a process consistent with his or her institution’s rules and regulations. Cast aside this fundamental principle, and you turn colleges into islands of lawlessness and render them uniquely inhospitable to free inquiry.

Has the Supreme Court gone too far?

This essay originally appeared as part of a symposium in Commentary.

IT is crucial to recall, in this season of conservative discontent with the U.S. Supreme Court, that two years ago liberals were enraged by (and still fume over and plot revenge for) what they regarded as the Court’s unpardonable intervention in the 2000 Florida election controversy. Grutter and Lawrence have in common with Bush v. Gore that all are hard cases, in which respectable constitutional goods can be found on both sides of the question. At the moment, the Court is bearing the brunt of the strain that these hard cases have imposed on our constitutional order.

Liberals versus Religion

This essay originally appeared in The Weekly Standard.

THE UNITED STATES Supreme Court’s 5-4 decision in Zelman v. Simmons-Harris upholding the constitutionality of the Ohio school voucher program was not really as close as it seems, at least not if the quality of the constitutional arguments of the majority is weighed against the quality of the arguments of the minority. As in sports, the final score can be deceiving. But the tendencies of the bad arguments employed by the dissenters are revealing.