First the Oscars, now the Supreme Court...

Following up what must be a bitter, albeit symbolic and empty, defeat at the Academy Awards last night, gays were dealt another setback (a real one this time) by a unanimous Supreme Court today with the announcement of Rumsfeld v FAIR. The Court rejected a challenge to the Solomon Amendment, congressional legislation imposing a requirement that colleges and universities extend access to military recruiters equal to that extended to other employers. Congress had conditioned receipt of federal funds on the right of access, but the Court rejected the objections of law schools on the basis of Congress' Article I power to raise and support an army.

Law schools represented in the suit by the Forum for Academic and Institutional Rights argued that their antidiscrimination policies--opposing facilitation of discrimination by denying access to their students to employers who discriminate--should be applied equally to the DoD. They sought to limit or deny access to military recruiters due to the military's "don't ask don't tell" policy, which discriminates against homosexuals. The schools marshaled mostly First Amendment claims: free association, freedom from compelled speech, and from compelled expressive conduct. Although from my preliminary reading it seems like the CJ's opinion strains in a couple of instances to distinguish this case from some previous caselaw on these issues, especially compelled speech and association, I don't see why he bothered, since the Article I ground likely overwhelms even a valid First Amendment claim. If Congress can force me to join the army and fight overseas even though I object to their policies regarding homosexuals, and they can, it seems like they can force colleges and universities, especially law schools, who enjoy considerable state protection, to contribute to the recruitment of military personnel despite their objections.

A complete change of subject (on judicial elections) below the jump...

In another action today, the Court declined to review a case from the Illinois state supreme court in which a justice on the state high court who appeared to have accepted a substantial amount of money from State Farm insurance in an expensive election for the position cast the deciding vote throwing out a civil judgment against State Farm. Petitioners argued that the 14th Amendment creates a Due Process right to a hearing before a court untainted by such associations.

I know something about federal recusal law and the model judicial code of conduct, but not much about Illinois' in particular. It seems to me, however, that if "Due Process" applied to the states means anything, it means among other things the right to an impartial jurist hearing one's case. Certainly, if someone were to directly bribe a state judge to throw out a case against them, that would create a federal claim to a denial of Due Process, regardless of how one reads the Due Process clause. This is despite the fact that federal courts don't have a direct supervisory role over independent state court systems and that state courts aren't subject to federal recusal law.

I do think, though, that the justices on the SCOTUS are reluctant to help out state court systems with problems like this. As Republican Party of MN v White made clear, a majority of the justices on the SCOTUS believe that if states want to elect their judges, they have to deal with the consequences of that decision. Now, US high court justices regularly fume at any suggestion that they be subjected to anything like the public scrutiny that candidates for public office have to endure as a matter of course. Scalia, for instance (the author of White) may hate the idea of electing judges (certainly, elected judges wouldn't be able to go around forbidding people from tape recording their public speeches), but if states want to be that stupid, they can't expect the SCOTUS to help them avoid the inevitable compromises of judicial independence and impartiality.

That said, many of the people looking to the Court for help also hate judicial elections, but I think if they really wanted to get rid of them, they should take the justices' lead and merely expose all the problems that result from electing judges, rather than try to patch them up with ethics codes, canons of conduct, and federal Due Process rights.

No action (again) on Jose Padilla's petition.

PS. I read over the Oscars ceremony posts, which are deadly dull. I blame the Academy, though.