And the wingnuts have had a good ol' time with two recent decisions by the Supremes--Rumsfeld v. Forum for Academic and Institutional Rights and Scheidler v. NOW. In the first, the court ruled that a law school association could not restrict military recruiting on campus because they objected to the government's policy on homosexuals in the military, etc.
Ladies and gentlemen, both decisions are of little significance, and the Bard of Avon may well have been describing wingnut radio when his Macbeth stated that "it is a tale told by an idiot, full of sound and fury, signifying nothing."
First of all, the FAIR decision was absolutely correct and the original complaint by the law profs was absurd. They claimed that the forced inclusion and equal treatment of military recruiters violated THEIR 1st Amendment freedoms of speech and association. As new Chief Justice Roberts described it, "according to FAIR, the [access requirement] was unconstitutional because it forced law schools to choose between exercising their First Amendment right to decide whether to disseminate or accommodate a military recruiter's message, and ensuring the availability of federal funding for their universities. "
That is patently absurd on its face. This is law school recruiting, after all, not compulsory presentations, etc. This means the placement office puts up sign-up sheets and students CHOOSE to go talk to the recruiters. I find it very difficult to imagine how any 1st Amendment rights are violated by conducting interviews with willing students [I would appreciate Doc's input on this, and in the interest of full disclosure, I was recruited by and offered a lieutenant's commission in the U.S. navy JAG corps as a 3rd-year law student.]
But beyond constitutional arguments, the question becomes very simple--the statute conditioned acceptance of certain federal funds on access. The courts have routinely held that the spending power may be used to "encourage" conduct (speed limits, drinking age, Title IX compliance, etc.). Don't like what they are asking? Don't take the money. Simple.
On Scheidler--while Joseph Scheidler is a disgusting human being, he is not an extortionist or a racketeer, and that notion was the basis for the holding. The court simply held that the "predicate act" for a RICO violation, a violation of the Hobbs Act, was not sufficient because "physical violence unrelated to robbery or extortion falls outside the scope of the Hobbs Act." That's it--period. Nothing about abortion, nothing about Roe. It just deals with what I would agree was a very tenuous interpretation of RICO and the underlying operative statute.
And the fearless prediction--South Dakota.
NOTHING will come of this on the South Dakota abortion "ban." If challenged in federal court, it will end up in the 8th Circuit, and they will void it. NO circuit court is going to directly overrule Supreme Court precedent. The state petitions for cert, and surprise (or not)--the Supremes decline to hear the case.
Why? Simple. The Supreme Court re-affirmed Roe in 1992 in Planned Parenthood v. Casey (505 U.S. 833). So whatever flaws (and there were MANY) were in Roe, the court concluded again that the basic principles were right. SO--the court VERY RARELY directly overrules precedent. There is a tremendous concern for institutional integrity, which is impugned if the court walks away from a precedent just because of a change of membership. There would be no easy way out on this one, and the Supremes won't touch it.
of you have sat, and perhaps thought, with us!
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