A note on Elena Kagan, part 2

I wrote about the lawsuit challenging the Solomon Amendment when the case was pending before the Supreme Court in the Weekly Standard column “JAGs not welcome” and again this week in “A note on Elena Kagan.” Today former Solicitor General Walter Dellinger steps forward to defend Kagan’s having signed off on the friend-of-the court brief Dellinger submitted to the Supreme Court supporting the plaintiffs’ lawsuit against the Department of Defense opposing the Solomon Amendment.
According to the brief Dellinger wrote and Kagan signed, the Solomon Amendment did not reach the law schools’ refusal to accommodate military recruiters. Try as it might have to require universities receiving federal funds to give military recruiters access to campus, according to Dellinger and Kagan in the brief, the Solomon Amendment didn’t do it.
This was an argument regarding the plain meaning of the statute that the Supreme Court unanimously rejected in the first three pages of its decision. In his column, Dellinger reiterates the argument he made in his brief while failing to acknowledge that the Supreme Court summarily rejected the substance of his argument in its decision.
Dellinger would have readers believe that the Court simply went along with the parties’ desire to reach the constitutional issue raised by the law schools’ Solomon Amendment lawsuit. This is not how the Supreme Court operates and it is not what the Supreme Court did. It reached the constitutional issue in the case because the Solomon Amendment could not fairly be read as Dellinger urged.
Dellinger’s column raises a question that should be posed to Kagan. Did Kagan think that the Solomon Amendment allowed Harvard Law School to refuse accommodation to military recruiters? Kagan’s signing off on Dellinger’s brief suggests that she did. If so, one can reasonably conclude that she has a hard time construing the plain meaning of a federal statute, or that she rejects the plain meaning of a statute if it conflicts with the result she desires in a given case. In either case she does not belong on the Supreme Court.
As Dean of Harvard Law School, Kagan opposed what she referred to as “the military’s discriminatory employment policy.” She refused to acknowledge that the military’s employment policy reflected the law of the land. Even if Kagan was in good company in this, that’s an odd position for a law school dean to be in. Dellinger to the contrary notwithstanding, Kagan should be pressed on it now.
UPDATE: Bill Kristol takes up another theme in Dellinger’s column, which he calls “comically disingenuous.” On different grounds, that captures my take on the column as well.

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