Independent Student Newspaper Since 1969

The Badger Herald

Independent Student Newspaper Since 1969

The Badger Herald

Independent Student Newspaper Since 1969

The Badger Herald


New challenges for Roberts court

First Monday.

It's not just the name of a lackluster CBS television show that lasted a mere four months in 2002. Rather, it unequivocally marks the beginning of another term on the U.S. Supreme Court during the first week in October. A day when liberals will adorn the outside of the courthouse with their well known "Keep Abortion Legal" signs, and their political counterparts will conveniently set up six coffins next to them — each bearing a court ruling. And, yes. Two of them will be Roe v. Wade and Lawrence v. Texas.

While this is occurring, The New York Times will use this occasion to nonchalantly enlighten Justices Scalia and Thomas as to how they should be doing their jobs while surreptitiously wishing life tenure wasn't available to strict constructivists.


As the U.S. Senate prepares to vote this week on the confirmation of John Roberts to take the helm of the Supreme Court, 37 cases currently await the justices' arrival next week.

Most of the cases currently on the docket probably won't satiate the appetite of the most ardent Supreme Court junkies among us.

You know who you are. You're the one who can name all nine justices on the court (bonus points if you can name the president who appointed them), you've read Edward Lazarus' "Closed Chambers," you watched the nomination of John Roberts, Jr. on television, and you actually ventured a guess as to who President Bush would nominate to replace Justice O'Connor.

But, maybe the surest sign of a true junkie is the mere fact you are still reading this column.

Fortunately, our nation's appellate court system has provided the court with a few controversial cases this term. You know — the cases people blog about. The cases that make college women naively believe their next abortion will be performed in a back ally. The cases that eventually find their way into an undergraduate constitutional law textbook.

One of these controversies hits close to home. The court will address whether the Solomon Amendment — which withholds federal funds from institutions of higher education that deny military recruiters the same access to campuses that they provide to other employers — is unconstitutional.

It was only a few months ago the chancellor of the University of Wisconsin-Stout issued a statement announcing his decision to prevent an Army ROTC program from forming on campus. He reversed his decision after he realized it violated both federal law and UW System policy.

The court should take this opportunity to reaffirm precedent and uphold the constitutionality of the amendment.

FAIR, the organization that brought suit against the Department of Defense, is a coalition of more than 30 law schools and professors. But the group more closely resembles a law student moot court team than a group of legal scholars. Their arguments before the Court represent nothing more than a laundry list of constitutional provisions the amendment may potentially violate. Two arguments warrant a brief discussion.

Contrary to FAIR's argument, the amendment does not violate Congress' spending power.

The Supreme Court has long adopted a Hamiltonian reading of the spending power, believing that Congress has the authority to conditionally spend for any purpose, as long as Congress can justify the action as serving the "general welfare." Satisfying this requirement is by no means difficult.

The military must be able to recruit the brightest and most talented people for its forces in an effort to provide for the common defense and sustain a strong military.

Given the government's purpose for the amendment, the conditional spending is little more than a carrot — not a mandate — to entice institutions to allow recruiters access to campuses and students. As Chief Justice William Rehnquist aptly stated, those who accept federal funds "exercise their choice knowingly, cognizant of the consequences of their participation."

Furthermore, the federal law is within the bounds of the First Amendment.

FAIR argues the law violates the "compelled speech doctrine" of the First Amendment by forcing students and others on campus to support the position of the military on homosexuals. But, institutions should realize they are not compelled to endorse the policy of the military.

More legal arguments could be hashed out. But, the point here is simple. Institutions of higher education can't have their cake and eat it too.

It appears the court will leave affirmative action, gay rights and religion alone — at least for now. The court has yet to fill up half of its docket.

Nonetheless, as a reminder to the justices of the court, Chief Justice Marshall once said, "We must never forget that it is a Constitution we are expounding." We must also not forget the principles of stare decisis and the rule of law, as politics should remain outside on the courthouse steps with the picketers.

Darryn Beckstrom ([email protected]) is a doctoral student in the Department of Political Science and a second-year MPA candidate in the La Follette School of Public Affairs.

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