The Judgment of Solomon

U.S. Supreme Court Chief Justice John G. Roberts, Jr. ’76 “was and is romantic about all things Harvard,” his Harvard Law School (HLS) friend, Donald S. Scherer, told The Crimson last summer. But Roberts’ amorous attitude toward his alma mater did not overpower his legal judgment in a high-profile case on campus military recruitment this past year.

Roberts’ opinion in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) upheld the constitutionality of the Solomon Amendment, which forces universities to give military recruiters equal access to campuses or give up grants from several federal agencies. Harvard would lose more than $400 million a year.

The HLS nondiscrimination policy—adopted in 1979, the same year Roberts received his JD—requires recruiters who use the school’s career placement office to pledge that they will not discriminate on the basis of sexual orientation. The military has refused to sign the pledge.

Although Law School Dean Elena Kagan granted military recruiters an exemption from the nondiscrimination policy this past September, Harvard has continued to fight the Solomon Amendment. Harvard was not a part of FAIR, the consortium of three-dozen law schools that filed suit. But Harvard’s central administration joined six other universities in filing an amicus brief in support of FAIR. Additionally, Kagan and 39 other law professors filed a separate brief arguing that Harvard’s practice of holding all recruiters—military or not—to the same nondiscrimination policy was in compliance with the equal access clause of the Solomon Amendment.

Roberts rejected the argument of the HLS professors, some of whom were his teachers over 25 years ago. He wrote that the professors’ interpretation of the equal access clause “is rather clearly not what Congress had in mind.”

Roberts also tossed out FAIR’s argument that forcing campuses to welcome military recruiters would violate schools’ rights to free speech and free association. “FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect,” Roberts wrote.

Beyond the closely watched FAIR decision, Roberts’ arrival at 1 First St. has precipitated two striking changes at the Court. First, the justices have adopted a less abrasive attitude toward lawyers who present cases before the Court. Tyler Professor in Constitutional Law Richard H. Fallon said that in recent years “it had been notorious that before a lawyer could get a few sentences out, the justices would immediately ask questions and use the lawyer as a conduit to have arguments amongst themselves as they asked rhetorical questions.” Under Roberts, however, Fallon said that the general perception is that “the questioning in oral argument is more restrained and civil, and it is easier for lawyers to get out their arguments.”

Second, Roberts seems to be making a concerted behind-the-scenes push for greater unanimity on the Court. Of the 46 decisions issued by the end of last month, 30 were unanimous. In a commencement speech at Georgetown University Law Center in mid-May, Roberts cited “clear benefits to greater consensus on the Court” to support his personal belief that “if it’s not necessary to decide more to dispose of a case...it is necessary not to decide more.”

The results of Roberts’ desire for greater unanimity, however, remain unclear. “So far this term there have been a surprisingly large number of cases decided with no dissent or virtually no dissent,” Fallon said, but “the real test will come when they get to the late-term cases.” The most divisive decisions—which take the longest to reach—often arrive in June.

‘A GREAT CONSUMER OF PEPTO BISMOL’

Roberts arrived at Harvard in the fall of 1973, and, by all accounts, he had already adopted the firm, but not staunch, conservative beliefs that have defined his legal career.

Friends and roommates of Indiana-bred Roberts remember that the Straus Hall freshman aspired to be a historian. After moving to Leverett House, Roberts graduated summa cum laude in three years and chose to go on to the Law School instead of the history PhD program.

Last summer, when Roberts was nominated to the Court, Robert N. Bush ’77, who was Roberts’ roommate for three years, described Roberts as “a serious student” and “a great consumer of Pepto Bismol.”

“There were no parties, but John did have a social life,” Bush said.

Roberts was also described as somewhat formal. Indeed, Bush recalls that “when he was considering law schools, John removed Stanford from his list because the Stanford interviewer was wearing sandals and didn’t have a tie.”

At the Law School, Roberts became the managing editor of the Law Review, where he was known as a fair and honest boss and a hard worker who was never seen as ideological.

“Whatever the hours, he never got stressed or angry,” Charles E. Davidow, who was treasurer of the Law Review when Roberts was managing editor, said last summer. “He was just the type of person you want in a high-stress job where you have to spend time together.”

After graduating from the Law School, Roberts rose rapidly to the top of the legal world—he is now the youngest chief justice since the early 19th century.

Now, as the end of his first term on the bench draws near, Roberts has already put his mark on the Supreme Court—and his alma mater.

—Sraff writer Adam M. Guren can be reached at guren@fas.harvard.edu.