More on Rumsfeld v FAIR

Lots of reactions from the blawgosphere (what an ugly word.) SCOTUSblog collects some, (Marty Lederman's posted response has a healthy debate going on in the comments) and ACSBlog has some others. TaxProf Blog has a nice collection of responses. In her comments, Ann Althouse writes "I dread seeing all the opinion pieces that connect this case to 'Brokeback Mountain' not winning the Best Picture Oscar." Hey, I was just joking. And I wasn't even the only one.

Reading the analyses of others pointed out to me that I'd neglected a major part of the decision, the "unconstitutional conditions" doctrine, in my brief summary yesterday. Even with its spending power, Congress can't impose conditions on recipients of federal money if those conditions would be unconstitutional to impose directly. This is why the First Amendment treatments matter. If the Solomon Amendment's requirement violated a valid First Amendment claim of the respondent schools, then the use of federal money to coerce compliance with the policy would also be violative. Roberts' opinion disposes of the First Amendment claims of the schools, finding none of them valid. Arguably, the opinion narrows coerced expressive conduct/association law in the process.

That said, it would have been possible for the Court to recognize that one or more of FAIR's First Amendment claims wasn't completely bogus and still conclude that Congress' power to "raise and support Armies" overrides it. Of course, a holding like that would have caused indigestion throughout conservative circles, where they hate balancing approaches. Volokh Conspiracy would be teeming with complaints that they just got rid of one O'Connor (who was fond of balancing tests) only to find they have another.

Balancing approaches to constitutional law are vulnerable to criticism because (arguably) they leave the justices with too much discretion to decide cases through the subjective application of comparative "weights" or they allow the Court to diminish important constitutional rights or powers by "balancing them away." However, the alternative represented here is to continually restate and recharacterize constitutional rights and interests to exclude or include whatever specific application is at issue in the instant case. You could call it "distinguishing" them away.

Many readers of the opinion seem pleased with CJ Roberts' fulfillment of his promise as a careful legal craftsman, treating the jurisprudential issues in clear language and with meticulous attention to the issues and caselaw. While that might strike many (including myself, possibly) as preferable to the ungainly opinions that often result from balancing competing constitutional interests, the beauty of Roberts' kind of craftsmanship can be dulled by cavalier treatment of those issues and precedents. In particular, I think a couple of the compelled speech cases and especially the expressive conduct cases are done a bit of damage by the CJ's readings of them. It may serve judicial elegance to deal with issues by offering revised readings of previous cases to eliminate issues, but it doesn't serve a lot of other important jurisprudential values.