The New Yorker: PRINTABLES
SEX AND THE SUPREMES
by JEFFREY TOOBIN
Why the Court’s next big battle may be about gay rights.
Issue of 2005-08-01
There have been occasions in the history of the Supreme Court when simple professional excellence, more than any grittier consideration, was enough to propel a lawyer onto the bench. Ethnic and geographic balance, as well as a measure of ideological suitability, played some part in, say, Herbert Hoover’s selection of Benjamin Nathan Cardozo, in 1932, or Dwight D. Eisenhower’s choice of John M. Harlan, in 1955, but it was possible, too, to see these nominations as ratifications of a national consensus about lawyerly credentials. George W. Bush’s designation of John G. Roberts, Jr., can be seen as following this tradition. Though he is only fifty years old, Roberts, who graduated magna cum laude from Harvard Law School, has been a clerk to two eminent judges (the late Henry J. Friendly, of the United States Court of Appeals in New York, and William Rehnquist, Roberts’s likely future colleague), a lawyer in the Reagan White House, Principal Deputy Solicitor General under the first President Bush, and a leading private lawyer before the Justices. Since 2003, he has served on the U.S. Court of Appeals for the District of Columbia Circuit.
But the transformation of the politics surrounding the Court suggests another, less noble reason for the President’s choice. Roberts’s shimmering résumé reveals everything except what really matters when one considers the potential impact of a Justice. More than ever before, the Supreme Court has become the national arbiter of cultural issues, and the last years of the Rehnquist Court have been characterized by a moderate consensus that has largely reflected the centrist views of the Justice whom Roberts would replace, Sandra Day O’Connor. On these issues Roberts has said little. When he was Deputy Solicitor General for the first President Bush, he argued for overturning Roe v. Wade, which legalized abortion. Yet in written responses during the confirmation hearings for the D.C. Circuit, in 2003, he said, “I do not believe that it is proper to infer a lawyer’s personal views from the positions that lawyer may advocate on behalf of a client in litigation.” He also described Roe as “binding precedent,” although a Supreme Court Justice is far less bound by precedent than any lower-court judge.
In light of his argument against Roe, and because he was nominated by Bush, many reproductive-rights groups have rushed to condemn Roberts. For the same reasons, many conservatives have embraced him. According to Jay Sekulow, who runs the conservative American Center for Law and Justice, which was founded by the televangelist and onetime Presidential candidate Pat Robertson, “The President said he wanted a Justice in the mold of Scalia and Thomas”—Justices Antonin Scalia and Clarence Thomas—“and I think that’s what he’s got with John Roberts.” But Roberts’s paper trail, which is more extensive than is generally believed, suggests a more cautious assessment. His own words appear to support the view, expressed by many who know him, that he does not hold strong political beliefs. “I know one of the things that frustrates very much the judges who are on [the D.C. Circuit], all of whom are very hardworking,” he said in his 2003 confirmation hearings, “is when they announce a decision and they’re identified in the press as a Democratic appointee or a Republican appointee.” And, Roberts added, “all of a sudden the report is, well, they just decided that way because of politics.”
Roberts believes in the concept of judicial restraint. In a recent opinion in the D.C. Circuit, he chided his conservative brethren in a case about the regulation of raw materials used in making drugs, admonishing them, in Justice Felix Frankfurter’s words, “to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.” In an answer to the senators about his judicial role models, he wrote, “I admire the judicial restraint of Holmes and Brandeis, the intellectual rigor of Frankfurter, the common sense and pragmatism of Jackson, the vision of John Marshall.” The question, then, is how this potpourri of influences will translate into his opinions on the Court at a time when, like any Justice, he will be defined by his views on such issues as abortion, church-state controversies, and gay rights—an especially inflammatory issue in recent years.
The Supreme Court last considered a gay-rights issue in 2003, in Lawrence v. Texas, when the Justices ruled, six to three, that the state could not criminalize sodomy between two consenting males. The Justices then issued duelling prophecies about the meaning of their decision. Justice Anthony Kennedy’s opinion for the majority amounted to a sustained plea for equal rights for homosexuals, who “are entitled to respect for their private lives.” But Kennedy asserted that his opinion addressed only the issue before the Court, and did not, for example, presage an endorsement of gay marriage. This disclaimer drew a characteristically biting rejoinder from Scalia in his dissent: “Do not believe it.” Rather, Scalia insisted, “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.” When the Supreme Court reconvenes, in October, presumably with a Justice Roberts in the junior seat, the Court will return to the “homosexual agenda.”
The upcoming case reflects the curious state of the contemporary gay-rights movement. In some respects, and in some places, especially within the legal profession itself, the cause of gay rights has never been stronger. As Scalia noted with dismay in his dissenting opinion in Lawrence, the Association of American Law Schools “(to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct.” At the same time, anti-gay-rights forces have continued to gain strength. After most law schools refused to help military recruiters on their campuses under the policy denounced by Scalia, Congress took another tack. They passed a law saying that if a law school persisted in limiting recruiting by the armed forces, the school would lose federal funding. It is the constitutionality of this law, which is known as the Solomon Amendment, that the Court will decide this fall.
As Supreme Court doctrines go, gay rights is a relatively new one, especially compared with decisions on race and gender. Systematic legal efforts on behalf of gays began only in the nineteen-seventies, and the Justices didn’t address the issue in a substantive way until the eighties. But that is changing. In May, a federal district judge in Nebraska struck down a recent amendment to that state’s constitution which banned gay marriage and civil unions; an appeal of that ruling is pending. The Court will almost certainly be asked to decide whether gay marriages in Massachusetts must be honored by other states. The Solomon Amendment case will be an important clue about which side has the upper hand.
The series of events leading to the Supreme Court argument on the Solomon Amendment began about forty years ago, with the arrival of Sylvia Law in New York City. Law, who grew up in Bozeman, Montana, won a National Merit Scholarship, which took her, in the early sixties, to Antioch College. “Antioch made you take a job during college, and I got one at the Ethical Culture Society,” she said recently. “I got off the train, and I was an instant New Yorker. I wanted to be a civil-rights organizer, and I applied to core and the N.A.A.C.P., but all they wanted to know was how fast I could type. I’m a good typist, but a better organizer. So I got a job as a ward clerk at St. Luke’s Hospital, for minimum wage, and soon enough I realized I had to get out. I had to have a better credential, so I went to New York University Law School.” After graduating in 1968, she spent a few years as a lawyer in the national welfare-rights movement, and then, in 1973, she was invited to teach law at N.Y.U., as one of the first two women to join the faculty.
Now sixty-three, Law has a spray of disorderly blond hair and the weary smile that comes from waging a generation’s worth of political fights, many of them unsuccessful. In her academic life, Law helped to pioneer the field of health law, studying such varied subjects as malpractice and assisted suicide, and she is now the Elizabeth K. Dollard Professor of Law, Medicine, and Psychiatry. She has kept up as a litigator, too, spending a decade on the losing battle to persuade the courts to recognize a constitutional right to government-funded abortions for poor women. Around the school’s Greenwich Village campus, Law may be best known as the unofficial godmother to progressive students and their causes.
“N.Y.U. has an extraordinary and unique role in American legal education,” Law said recently in her office, which is decorated with samples from her collection of homemade quilts. “We’ve been ahead of everyone in welcoming women and blacks to law schools and to the profession.” In the late seventies, Law noticed an anomaly in the school’s recruitment policy. “We had tons of great gay students, and, among feminists like me, it was obvious to us that gay rights was the next civil-rights movement,” she said. So, in 1977, at the instigation of Law and others, the faculty voted overwhelmingly to bar employers who discriminate on the basis of sexual orientation from using the law school’s placement office. N.Y.U. was the first law school in the country to add such a provision to its recruiting policy, which did not apply to the rest of the university. Harvard, Yale, and Stanford followed.
The race and gender provisions of the recruiting policies had an immediate effect on both the law school and the firms that recruited there. Burt Neuborne, a well-known civil-rights litigator and another longtime professor at N.Y.U., said, “When Sylvia and I started teaching here, in the early seventies, we still had firms that told us up front that they wouldn’t hire blacks. They said the same thing about women. We decided we simply wouldn’t allow our facilities to perpetuate that kind of discrimination. And what we did worked magnificently. The law firms simply changed their policies, virtually overnight.”
At the same time that liberal law professors were advancing the gay-rights agenda on campus, like-minded lawyers were trying to do the same in the courts. They made it to the Supreme Court in 1986, but the Court’s first major gay-rights decision was a tremendous disappointment. In Bowers v. Hardwick, a dismissive opinion by Justice Byron White, for a five-to-four majority, held that the State of Georgia could prosecute individuals for engaging in consensual homosexual sodomy; White wrote that the gay defendant’s claim “is, at best, facetious.” Perhaps the most revealing cultural marker in the case was that the swing vote, Justice Lewis Powell, told one of his clerks at the time that he had never met a gay person. In fact, according to Powell’s biographer John C. Jeffries, Jr., that clerk was gay. (Powell, who died in 1998, later said that he regretted his vote in Bowers.)
Still, the setback in the Supreme Court didn’t stop the momentum behind gay rights. In 1990, the Association of American Law Schools approved the rule that offended Scalia—requiring prospective recruiters on their campuses to “observe the principles of equal opportunity.” The following year, Bill Clinton, early in his campaign for President, said that he favored allowing gays to serve in the military. “It seemed to me elemental that if a person, a man or a woman, wanted to serve their country they ought to be able to do it,” he said in a speech in Los Angeles. The promise drew relatively little attention during the campaign, but when Clinton reiterated it shortly after his inauguration it turned into a political fiasco; the issue dominated his first days in office in a way that the new Administration had never anticipated. On January 25, 1993, “at their urgent request,” as Clinton recalled in his memoir, the Joint Chiefs of Staff met with him to announce their unanimous objection to lifting the ban on gays. Congressional opposition, led by Sam Nunn, at that time the chairman of the Senate Armed Services Committee, was just as strong. Facing certain defeat, Clinton told his Secretary of Defense, Les Aspin, to come up with a compromise, and on July 19th the President announced the policy that became known as “Don’t ask, don’t tell.” The new approach theoretically allowed gays and lesbians to remain in the military, but only if they could convince their superiors that they were celibate. “I got the worst of both worlds,” Clinton later wrote—losing the fight to allow gays in the military and earning taunts of betrayal from his gay supporters.
Law schools, though, showed no intention of backing down on gay rights. In 1993, the N.Y.U. faculty went so far as to ban all Colorado law firms from on-campus recruiting, to protest the state’s passage of Amendment 2, which repealed state laws that offered protection against discrimination on the basis of sexual orientation and forbade the future passage of any such laws. (The faculty rescinded the ban after the Supreme Court struck down Amendment 2, in 1996.) And “Don’t ask, don’t tell” made the law professors more determined to keep military recruiters off campus.
The campus protests against “Don’t ask, don’t tell” were noticed by the congressmen who had already embarrassed Clinton on the issue. “I had a group of kids from my district who were going to Sacramento State, and they were worried that they were going to lose their R.O.T.C. scholarships, because the university was throwing the R.O.T.C. off campus,” Richard Pombo, a Republican congressman from California, recalled. “So I called an official at the school. He was very abrupt. He said, I don’t like the military policy and I don’t like the military, and there is nothing you can do about it. It became very adversarial, and I came back to the office and started talking about what we could do about it.”
Pombo has a goatee that, by congressional standards, is rakish; he looks younger than his forty-four years, but he’s a veteran legislator, now serving his seventh term in a sprawling district that includes the Central Valley, east of San Francisco. Like many Western congressmen, Pombo wears cowboy boots to work in the Capitol, and he often wears a cowboy hat, too, especially when he’s being photographed. Early in his congressional career, Pombo focussed mostly on agricultural and resource issues, but the stand of the universities led him to join Gerald Solomon, a Republican congressman from upstate New York, and propose a law that would test the strength of the academics’ convictions. In a speech on the floor of the House in 1994, Pombo said that the universities who received money from the federal government “need to know that their starry-eyed idealism comes with a price.” (Solomon died in 2001.)
The political trajectory of the Solomon Amendment tracked the ascendant path of social conservatives generally. The first version of the law, which passed in 1994, directed the Department of Defense to withhold funds from any school that restricted military recruitment. As a consequence, N.Y.U. Law School gave up seventy-five thousand dollars in federal funds. But later the law changed, so that if only one part of a university limited recruitment by the military, the entire university would forfeit federal funding. For N.Y.U., that meant a hundred and thirty million dollars, mostly for medical research. Bill Carr, the Deputy Under-Secretary of Defense for Military Personnel Policy, explains the government’s rationale this way: “It’s called the ‘volunteer’ military, but it’s really a ‘recruited’ military. Walk-ins are only about five per cent of our needs. We have to go out and find the other ninety-five per cent, and anything that gets in the way of clear and open talk compromises our effort. That’s why we support the Solomon Amendment, because if we want to tell our story to people, and there is a censoring of our message, then our costs of doing business rise. We’re a federal agency obeying federal law about gays in the military, and we shouldn’t be penalized for it, especially in wartime.”
Faced with the potential loss of all federal funds, university presidents, like John Sexton, of N.Y.U., began instructing their law schools to readmit military recruiters. On September 19, 2002, Sexton wrote to Richard Revesz, the dean of the law school, saying that the university stood with the law school in opposing discrimination against gays, but the cost of a stand on principle was simply too high. “Given the consequence of what was at stake, I don’t think the university had much choice but to comply,” Revesz said. “We let the military recruiters come back on campus but also decided to use every legal means at our disposal to challenge the law.” Sylvia Law, along with professors and students at several law schools, filed a federal suit arguing that the Solomon Amendment violates the schools’ First Amendment rights to protest against discrimination on sexual orientation.
Like many fights over cultural issues, this one was provoked largely by core activists: it’s more the liberal law professoriat, rather than the law students, on one side, and conservative politicians, rather than the military as a whole, on the other. Even the main gay law students’ association at N.Y.U. left the lead protest role to a fledgling campus group that called itself Straights and Queers United Against Discrimination, or squad. “No one else wanted to make waves,” Richard McKewen, a member of the N.Y.U. Law School Class of 2001 and a founder of squad, said. “So, when the administration caved and let the military back on campus, some of us signed up for interviews and decided to confront the recruiters.” On the first day, about a hundred students chanted on the sidewalk, “Don’t ask, don’t tell. Military go to hell.” As for McKewen, he recalled, “Someone gave me a tiara and a feather boa. I tried to talk to the recruiter about how she was complicit in the discriminatory policy, but she pretty quickly cut off that conversation.” McKewen is now an attorney for the Federal Trade Commission, in Washington.
By the time Law and others filed their suit, which is known as Forum for Academic and Institutional Rights (fair) v. Rumsfeld, the gay-rights movement was doing better in the courts than in the political arena. In 2003, the Supreme Court’s Lawrence decision on homosexual sodomy explicitly reversed the seventeen-year-old ruling in Bowers v. Hardwick. Scalia’s warning—that Lawrence would lead to a right to gay marriage—was at least partially vindicated the following year, when the Supreme Judicial Court of Massachusetts relied heavily on Lawrence in allowing gays to marry there. Gay-rights forces won another victory on November 29, 2004, when a panel of the U.S. Court of Appeals for the Third Circuit ruled, two to one, that the Solomon Amendment violated the universities’ rights to protest against the military.
In Congress, though, support for the law has only grown. On February 2, 2005, in response to the Third Circuit’s ruling, the House voted 327-84 in favor of a resolution reiterating support for the Solomon Amendment. “The gut reaction with members is, Don’t mess with the military,” Pombo said. “It hasn’t been a big partisan issue, except for people who are really out of touch.” On May 2nd, the Supreme Court agreed to hear the appeal of the Third Circuit’s decision in fair v. Rumsfeld, and it will be argued on November 29th, very likely before a Court that will include John Roberts.
In his judicial writing, Roberts avoids legalese; he recently implored, “Give me English words over Latin maxims.” His opinions so far have borne out his suggestion to the Judiciary Committee, in 2003, that he was not, in effect, a Scalia-style ideologue. “I do not believe that beginning with an all-encompassing, categorical judicial philosophy or uniform approach to constitutional questions is the best way of faithfully construing the Constitution,” he wrote. “Different approaches may be better suited to different constitutional provisions.” Most of the current Justices follow this more ad-hoc philosophy, and, because the Court does not always take a head-on approach to the issues before it, there are sometimes less predictable voting patterns among the Justices. For example, the Court’s ruling in the medical-marijuana case, in June, did not directly address the propriety of such treatment, only the question of whether the power to regulate it belonged to the federal government or the states. In that case, the Justices’ views on federal power apparently trumped any feelings they might have about medical marijuana itself; so the more liberal members of the Court (plus Scalia) ruled in favor of federal supremacy, while Rehnquist, Thomas, and the ardently pro-states’-rights O’Connor said that the states should have the right to legalize the practice.
Even though the fair case is rooted in the law schools’ attempt to address discrimination on the basis of sexual orientation, the case is not, strictly speaking, about gay rights. It is, rather, a First Amendment case, about whether the Solomon Amendment impinges on the right to freedom of speech at universities, and whether the government has the right to use the leverage of federal aid to insist that the military be treated like other employers.
In fact, the precise legal issue in the case is surprisingly difficult to identify, and often the trick for Supreme Court litigators is how to define the question in the most advantageous terms. A successful example of this kind of intellectual sorcery came in a series of cases in the nineteen-nineties, when Jay Sekulow engineered a change in the law of religious expression in public places. Previously, the Court had struck down most such public displays in places like schools and government buildings, as a violation of the establishment clause of the First Amendment; the Court found that such conduct breached the wall between church and state. Sekulow argued that these cases weren’t really about the establishment clause at all but, rather, about freedom of speech; he convinced the Court that students who wished to use school facilities for prayer groups were the victims of government censorship. “The first thing you always have to do is frame the issue, and I took a lot of heat from people on my side, who thought I was abandoning the religion clauses of the First Amendment,” Sekulow said. “But I wanted to win the case.”
The lawyers on both sides of fair are trying to slot their case into a category that works best for their side. For some of the plaintiffs, the government is acting as a malevolent censor. “Government can’t give you a little bit of money and then tell the whole university how to run,” Kathleen M. Sullivan, a professor and former dean at Stanford Law School, who is preparing an amicus brief in support of the plaintiffs, says. “Government can’t have that much leverage. If we lose this case, there is nothing to stop the government from saying it will take away all federal funds if a university engages in stem-cell research, or gives birth control to its students, or performs abortions in its hospital.”
In the Third Circuit decision, Judge Thomas L. Ambro, writing for the majority, saw the case as an infringement on the law schools’ collective right to freedom of speech. He did so on the basis of a curious analogy. In 2000, the Supreme Court held that the State of New Jersey could not force the Boy Scouts to accept an openly gay man as an Assistant Scoutmaster. To do so, the Justices held, would have violated the Scouts’ rights to free speech under the First Amendment, specifically their desire not “to promote homosexual conduct as a legitimate form of behavior.” According to Ambro, “Just as the Boy Scouts believed that ‘homosexual conduct is inconsistent with the Scout Oath,’ the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness.” To allow the military to recruit on campus like other potential employers, the Judge wrote, the universities “must propagate, accommodate and subsidize the military’s expressive message.” Under the First Amendment, he concluded, the recruiting by the military amounted to “compelled speech,” which the government could not force the universities to undertake. As E. Joshua Rosenkranz, the New York lawyer who represents Sylvia Law and the other plaintiffs, says, “The military is saying to the universities, ‘We will come onto your campus. We will discriminate against your students. And you will help us do it.’ ”
The fair case also tests the murky concept of freedom of association. To the plaintiffs, the case is about universities deciding for themselves with whom they want to associate on their own campuses. But that freedom has a limit, especially when federal funds are involved. “The Court has said that there is expressive content, an ideological view, to the Boy Scouts, and even in the St. Patrick’s Day Parade in Boston, so the government can’t force the people who run the Scouts, or the people who run the parade, to associate with people they don’t want to associate with,” Charles Fried, a professor at Harvard Law School, who was Solicitor General in the Reagan Administration, says. “But neither the Scouts nor the parade organizers were taking federal money. When a group takes money from the government, the government is allowed to attach strings. And allowing military recruiters is a perfectly appropriate string.” (Roberts appears likely to share this view, which cannot be good news for the plaintiffs in the fair case. Last year, he joined an opinion in the D.C. Circuit which held that Congress could attach certain conditions to the funding of the Washington subway system. And in his written answers to the Judiciary Committee two years ago, he expressed some skepticism about the argument that strings attached to federal funding could amount to undue coercion on the states, referring to the “heavy burden one advancing such a claim would bear.”)
As the government sees it, the fair case is not about free speech or association but, rather, about the right of the federal government to control how taxpayers’ money is spent. The federal government attaches strings all the time. Money to states for highways can be conditional on road-safety standards and a drinking age of twenty-one; grants to universities come with the strictures of Title VI and Title IX, which require equal treatment of students by race and gender. “By allowing the military to recruit at their law school, the schools are not in any way making any statement or associating with any statement by the military,” Fried says.
The theme of the government’s brief in the case, which was filed last week, is equality: the amendment simply puts the government on a level playing field with other potential employers. “Educational institutions covered by the Solomon Amendment have not been compelled to do anything,” the brief states. “They have voluntarily chosen to accept federal funding on the condition that they provide military recruiters with equal access to their students and campuses. Institutions that do not wish to provide equal access to military recruiters may decline federal assistance.”
Most observers regard the legal arguments of both sides in fair as at least plausible, but most of the current Justices would probably want to defer to the needs of the military. Roberts’s history suggests that he would do the same; the concept of judicial restraint means a reluctance to invalidate the actions of the other branches of government. In its brief, the Justice Department plays up this part of the case, asserting, for example, that the government must have the right to resist “conduct that undermines the military’s recruitment effort, particularly in a time of War.” Even if the plaintiffs lose decisively, fair should probably be regarded as a skirmish in a wider war.
In the era of the Warren Court, in the nineteen-sixties, the concept of judicial restraint was largely associated with the political right—with resisting judicial interference in the governance of sovereign states. In recent years, though, the political right has tried to use the courts to push its own agenda. If a newly constituted Court establishes an abiding commitment to judicial restraint, the right as well as the left is likely to suffer disappointments. Two years ago, in his Senate testimony, Roberts said, “My clients and their positions are liberal and conservative across the board.” He was speaking, of course, about his work as an advocate, not his future as a final arbiter of the nation’s laws.