Schlaffly on Chief Justice Roberts

Phyllis Schlaffly is sort of the old faithful of conservatism - you can count on her to say something stupid every 10 minutes. Her latest stupidity comes from an Agape Press article about Chief Justice John Roberts and the fact that she's already disappointed in him. Now, that's no surprise to me. I said during his confirmation hearing that those on the right who think Roberts is going to be another Scalia are going to be disappointed. Roberts will be fairly solid conservative vote, but he is not an ideologue and he's not a bomb-thrower; Scalia is both. So the fact that Schlaffly is disappointed is hardly a surprise. But her reasoning...well, that's pretty darn funny. I'll post a long passage below the fold so you can see the basis of her argument.

Schlafly says she had hoped the appointments of Justices John Roberts and Samuel Alito would help put the Supreme Court back on a conservative course. However, she says Roberts did not take a strong stance on the Solomon Amendment, which forbids colleges and universities that receive federal funding to deny military recruiters access to their campuses.

Conservatives were hoping for a Thomas or a Scalia among Bush's recent appointments to the high court bench, Schlafly asserts, and she would have liked to see a strong pro-military stance here, issuing from an unequivocally conservative jurist. But clearly, she observes, "Justice Roberts is not that." And apparently, the pro-family activist adds, "in this case pertaining to the Solomon Amendment, he thought consensus and unanimity more important than staking out a strong message."

Schlafly believes Justice Roberts was too focused on bringing Justices Ruth Bader Ginsburg and Stephen Breyer on board. "The decision was sort of watered down to achieve consensus," the Eagle Forum founder asserts, "and I see no reason why we needed to get Ginsburg and Breyer to sign on to it. They are liberals; they don't like the military."

Justice Roberts' opinion contained "unfortunate language" reminding anti-war liberals that they could protest the presence of U.S. Armed Services recruiters on college campuses if they so desired, Schlafly contends. "Well, big news," she says. "The liberals don't need any reminding that they have free-speech rights. That isn't the point." The point, she insists, is that liberal protesters felt free to do more than protest.

Now, let's take a look at the actual ruling and see what she's objecting to. The case is Rumsfeld v FAIR. Here's the single line she's objecting to:

The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools "could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests"). As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do--afford equal access to military recruiters--not what they may or may not say.

And bear in mind that the legal argument that FAIR attempted to make in the case was that the Solomon amendment violated the free speech rights of the law schools, that it amounted to compelled speech. Apparently Schlaffly is disappointed when a court ruling actually addresses the argument made - even when they do so on the side that she supports (and that I supported as well; the ruling is clearly correct and the entire argument made by the law schools was absurd from the start). And notice also that Roberts was actually quoting the solicitor general; it was part of the government's defense of the Solomon amendment that it did not violate free speech rights because faculty and students were still free to engage in speech and protest against military recruitment, they just couldn't prevent them from coming on campus to talk to those who might be interested in talking to them. Apparently, Schlaffly thought that a Supreme Court justice should write an opinion like she would write it. Something like this:

Everyone knows that liberals hate the military, and the Solomon amendment provides a statutory basis for telling those shower-avoiding, pot-smoking, commie pinko hippy freaks to cut their hair and get a job.

Sorry to disappoint you, Phyllis, but there's nothing the least bit improper about the Chief Justice mentioning that those who wish to protest the military have a constitutional right to do so, especially when he is distinguishing what conduct is protected and what conduct is not. But ol' Phyllis has a strange sense of cause and effect analysis:

Shortly after the decision, the conservative leader notes, radical students at the University of California - Santa Cruz physically chased military recruiters from the campus. "And the Bush administration has done nothing about it," she laments.

Schlafly believes that incident might never have happened if the Roberts Supreme Court had not watered down the Solomon Amendment's force with its ruling. She suggests that the American people may have been duped by the supposedly conservative justice's appointment to the high court bench.

Utter nonsense. Not only did the Chief Justice not "water down the Solomon Amendment's force", he upheld its full constitutional authority. The Solomon amendment never prevented protests of military recruiters, nor could it. And if they actually did not allow the recruiter on campus at UC-Santa Cruz, that was against the law both before and after his ruling (which was a 9-0 ruling, by the way). If the Bush administration hasn't charged those who chased the recruiters off, they bear the responsibility for that. Nothing in Roberts' ruling changed a thing about the illegality of those actions.