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Bench Memos

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No Legal Basis for Separate and Unequal



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Kagan claimed in her response to questions from Senator Sessions that she thought that she had an obligation to return to Harvard’s prior policy of restricting access for military recruiters to Harvard’s career services office based upon the decision of the Third Circuit Court of Appeals.  At best, she is being disingenuous; at worst, her answer betrays legal incompetence. 

First, the Third Circuit decision had not taken effect—the mandate had not issued—when she reinstituted Harvard’s discriminatory policy.  Second, the Third Circuit’s ruling was stayed pending Supreme Court review, preventing it from interfering with the operation of the Solomon Amendment.  She knew that Harvard’s previous separate and unequal treatment of the military recruiters was deemed non-compliant by the DoD, which led her predecessor to reverse course and permit equal access in order to avoid loss of federal funds.  Since there was no change in the law effectuated by the Third Circuit’s stayed decision, there was no basis to return to a position she knew to be non-compliant.

Third, even if the mandate had issued or the case had not been stayed, the Third Circuit decision did not even cover Harvard.  The federal government generally applies non-acquiescence to lower court opinions which are adverse to federal laws and policies, which is to say, they treat the decisions as only binding in the district or circuit in which the decisions are issued.  In this case, that would mean that the Third Circuit opinion, were it ever given legal effect (which it was not), would apply only to schools in the Third Circuit.  But Harvard is in the First Circuit, a fact which the dean of Harvard law school undoubtedly knew.

Simply put, there was no duty for Dean Kagan to violate the law.  She was still bound by the Solomon Amendment, but she used an inapplicable decision as an excuse to push her policy preferences.  This use of non-binding law as cover is reminiscent of her Oxford thesis, in which she wrote that it is not “wrong or invalid” for judges to “mold and steer the law” in order to “promote certain ethical values and achieve certain social ends.”  But she suggested that judges should give themselves cover in doing so: “No judge should hand down a decision that cannot plausibly be grounded in principles referable to an acceptable source of law.  If, on the other hand, a court can justify a ruling in terms of legal principle, then that Court must make every effort to do so.” 

And so, the military recruiting affair appears highly relevant to understanding how it is that Kagan approaches the law.  It fits with a pattern dating back at least to her Oxford thesis of attempting to find legal window dressing to justify the imposition of policy preferences.



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