The Supreme Court Gets Fed Up With Professors
In March 2006, the Supreme Court, like a sleeping alligator, suddenly clamped its jaws on the Ivy League. Unanimously and without elaborate explanation, the Court told Universities that they could not block the U.S. Armed Forces from recruiting on their campuses. A number of Ivy League Universities, in this case the Yale Law School, had turned away Army recruiters because the Professors were offended by the Army's "don't ask, don't tell" policy on homosexual soldiers. The Supreme Court didn't even consider the reasons for the Universities' policies, although private opinions of the Court conservatives can be readily imagined. The Court would not even dignify the matter with the thunderous phrases about first principles which must have seemed tempting. The Chief Justice signed the order, the Court unanimously agreed, and that's as final as you are going to get.
About a month earlier, things seemed to be going the other way. The Harvard Faculty forced out their president, Lawrence Summers, because he violated their idea of politically correct speech. Quite significantly, two thirds of the students took the side of Summers in the dispute, a warning that the faculty were getting themselves into an isolated position. And if you look back to the way the nation divided when it twice elected the younger George Bush, support for East Coast urban elitism was likely coming to the end of a fifty-year dominance in American life. Not to put too fine a point on it, the country was getting tired of the bitter-end Vietnam War protesters, now entrenched in academic strongholds like Robert the Bruce. It may well be that the country was irked by expensive gasoline, French disloyalty, and Middle East intransigence, while the Legal profession was having a private quarrel. Clever of the Chief Justice to allow people to think what they pleased. The Constitution directs the Armed Forces to defend us; interfering with recruitment is at best impertinent, at worst imperils the nation.
The Supreme Courts of the various states, and the U.S. Supreme Court within the federal court system, retain the power of administration of all the courts which report to them, but they rarely exercise that power actively. As the number of judges has increased significantly in the past thirty years, public oversight of the selection or election of judges has been stretched to the vanishing point. The result has been a strengthening of political control over the courts, a lessening of the quality of the judges themselves, and a growth of the influence of law schools. The same parade of professors keep appearing as friends of the court, the metropolitan newspapers can always count on them for Op-Ed pieces on difficult topics. Their opinions begin to surface as their graduates start to enter law practice. Slowly and relentlessly, the viewpoints of faculty members of the five prestige law schools have come to challenge, and sometimes to upend, the rigidly organized opinions, right or wrong, of judge-made law. When it reaches the point where law schools can blithely block the ability of the armed forces to defend the country from foreign attack, it is past time to do something about it.
Some things never change. But this is going to change, and soon.