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March 06, 2006

The Dane Comes to Collect

Chief Justice John Roberts penned an 8-0 decision upholding the Solomon Amendment today. For those unfamiliar with the law, it requires universities that accept federal dollars to grant equal access to military recruiters attempting to recruit students. An association of law schools protested the amendment and were successful in convincing the Third Circuit to require the district court to issue an injunction against enforcement of the law. Now the Supreme Court has spoken and the law will go into effect.

It will be very interesting to see if law schools choose to forego federal funding in order to hew to their principles. I suspect few, if any, will do so, but I will be most impressed if any do. Standing up to do what's right (or what one thinks is right) really doesn't mean much if you don't have to make a sacrifice to do so. (See George Clooney's 'courageous' willingness to take on Senator McCarthy in "Good Night and Good Luck" for a good example of this.) If some law schools feel strongly enough about 'don't ask, don't tell' to give up federal funding to protest it, then I think their stand will carry a great deal more weight.

I'll also concur with Prof. Althouse in noting that the opinion is a nice start from Chief Justice Roberts. The opinion is cleanly written and lays out clear guidance for its implementation, something that Supreme Court decisions often sorely lack. This is important because clear decisions and guidance make the law easier to follow for everyone, which is what the law is supposed to provide. Despite the old canard about ignorance of the law, the fact is that ignorance of the law is often an excuse these days because nobody can be sure what the law is until the courts have weighed in, and sometimes not even then. Just look at the pair of church/state decisions the Court handed down last term, in which they ruled in opposite directions, meaning the law was just as murky after the decisions as before. We would be better off with clear decisions that lay out what the law is, even if they are decisions we disagree with, because clear decisions reduce the transaction costs of the law. If the Supreme Court were to put out a ruling saying that no religious imagery could be displayed on government property or at government expense, people might not like it but at least we could spare ourselves the spectacle of the Court deciding that you can, but you can't and leaving everyone unsure where the line is drawn. One of the most valuable things the Supreme Court can offer is a clear legal principle that everyone can understand and apply in the future. It means the Supreme Court doesn't need to get involved if the issue comes up again, and it reduces the chances of people attempting to violate the policy in the hope of getting some court to rule in their favor. While one decision is hardly indicative of a trend, this decision at least gets the Roberts court off on the right foot.