Surprised by Solomon?

From Inside Higher Education’s review of reaction to the Supreme Court’s unanimous opinion in Rumsfeld v. FAIR:

Other legal experts questioned whether the law schools and professors who challenged the Solomon Amendment had done so in a way best designed to achieve their ultimate goal. John Banzhaf, a law professor at George Washington University, noted that the court had roundly rejected the views of both FAIR and of groups of constitutional scholars from leading universities that had filed briefs challenging Solomon.

“One interesting part of today’s ruling,” Banzhaf wrote in an e-mail message, “is how so many nationally known law professors at top law schools like Harvard, Yale, and Columbia (and my own law school) could have been so very wrong in putting together this lawsuit to challenge the Solomon amendment, and in asserting that the statute violated the First Amendment under no less that four different constitutional theories. Every single justice who participated — liberal, conservative, and middle of the road — ruled without exception that all of the legal theories they advanced were without merit.”

The professors may just have been wrong from a legal standpoint, Banzhaf wrote — but it is even worse, he suggested, if they proceeded with the case because they put their political views, “based upon their concerns about the underlying interests of gays or their desire to control access to their campus,” ahead of their legal judgment.

“When all of their predictions turn out to be so wrong, it only leads credence to the arguments that we law professors live in ivory towers oblivious to the real world, or that our publicly expressed opinions are

based more on liberal guilt than hard-nosed meaningful real-world analysis,” he said.

Jonathan H. Adler — Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of ...

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