As I write today, I think Elena Kagan should just apologize and move on. Her defenders tend to obscure that she changed the status quo in a more restrictive direction; that there was no reason for the 3rd circuit decision to cause her to do so; that she implicitly acknowledged that she was in the wrong prior to the Supreme Court decision, by backing down and giving recruiters full access again; and that her argument on the Solomon amendment got slammed 8-0 by the Supreme Court.
Dear Mr Lowry,
Whether the Solomon Amendment was constitutional, whether Harvard was in the Third Circuit or whether the court blocked its ruling on the Solomon Amendment from taking effect are all irrelevant to any discussion of Elena Kagan’s decision. The Court’s ruling, even if it applied to Harvard and even if it had taken effect in no way compelled Harvard to ban military recruiters. The ruling dealt only with the withholding of funds by the federal government. So to suggest that Elena Kagan was somehow following the court decision by re-imposing restrictions on military recruiters is nonsense. That this is the argument put forward by Harvard legal scholars should tell us all we need to know about the goals of Ivy League law schools.