SCOTUSBlog thinks yesterday’s argument in FAIR v. Rumsfeld, the Solomon Amendment case, went very well for the US. Justice Scalia is pushing the idea that Congress is due particular deference on the subject of military recruiting due to its enumerated power to “to raise and support armies” under Article I.
David Bernstein had a fine point last week on why law schools should rethink military boycotts, during wartime, as a way of protesting policies adopted by Congress and the President:
A hypothetical: would it have been morally appropriate for law schools to ban military recruiters during World War II because of military segregation and discrimination, or would it have been morally superior to cooperate with the military and provide needed talent for WWII, while still urging the political branches to change the military’s policies (as Truman eventually did in 1948)? . . . when people criticized Joe Louis for recruiting blacks to join the then-segregated military during WWII, he responded . . . “[t]here may be a whole lot wrong with America, but there’s nothing that Hitler can fix.”
UPDATE: Dahlia Lithwick has a lengthier and more colorful account of the argument, but is equally convinced that the law schools are going to lose.
The Solomon argument is really one where it’s common sense against anti-military prejudice. I wonder how many colleges ban Dominos from recruiting (assuming they do) as a business deiscriminating against non-Catholics, or some other business.
While I think the military’s anti-gay policy is stupid beyond belief, they were also the most integrated facet of the country (way more than pro sports). I don’t need figures to know that if you are black you are more likely to attain an upper management position in the military than private business; probably women as well. One reason the Air Force Academy’s scandal (and not too harsh a word) is so visible against non-evangelical cadets is that it is far more rare in the military.
Frankly, what is needed is a moratorium on recruitment on college campuses against law schools-we have enough lawyers already.