Looney Liberal Lawyers Lose Laughably

"Roberts's opinion does give rise to, and leaves unresolved, one nonlegal but rather large and disturbing question: How could so many law professors of such high rank and distinction be so wrong about such straightforward issues of constitutional law?

The losing party, the Forum for Academic and Individual Rights (FAIR), is an association of 36 law schools and law faculty, only 24 of which are willing to be named publicly. In addition, groups of faculty members from many of the leading law schools in the land filed separate friend of the court briefs on behalf of FAIR (alone among law faculty, members of George Mason filed a brief--in which I played no role--supporting the constitutionality of the Solomon Amendment). These included a friend of the court brief signed by 40 Harvard Law School professors--including Dean Elena Kagan in her capacity as professor of law; University Professor Laurence Tribe; and University Professor Frank Michelman. The brief was prepared under the supervision of counsel of record Walter Dellinger, professor of law at Duke University and former solicitor general of the United States in the Clinton administration.

Another friend of the court brief was signed by 42 members of the Yale Law School Faculty, including Harold Hongju Koh, dean and professor of law; former dean and Sterling Professor of Law Anthony Kronman; and Sterling Professor of Law and Political Science Bruce Ackerman. In addition, a joint friend of the court brief was submitted by Columbia University, Harvard University, New York University, the University of Chicago, the University of Pennsylvania, and Yale University. Their counsel of record was Seth Waxman, a visiting professor of law at Georgetown, and, like Dellinger, a former solicitor general in the Clinton administration.

This dazzling array of eminent law professors proved incapable--even after hiring the best Democratic party legal talent money could buy--of advancing a single legal argument persuasive enough to pick off even a single dissent from the four more progressive justices on the court--Souter, Breyer, Ginsburg, and Stevens--or to provoke even a single concurrence expressing a single demurral on a single point of law from Chief Justice Roberts's opinion."