The Nine [171]
Roberts also proved himself a skillful judicial craftsman. His first important opinion touched on gay rights, academic freedom, and the power of the military—and still produced a unanimous Court. The case also revealed the deep cleavages in the legal profession between the liberal faculties of leading law schools and the conservative majorities in Congress. After the fights early in the Clinton administration over gays in the military, most leading law schools banned military recruiters on campus because the armed services refused to hire openly gay people and thus violated the schools’ nondiscrimination policies. (Many of the faculty votes for the bans were unanimous, suggesting an extraordinary level of political conformism.) Enraged at these snubs to the military, conservatives in Congress responded by passing the Solomon Amendment, which cut off all federal funds to universities that did not allow equal access to recruiters from the armed forces. At many universities, the amendment put tens of millions of dollars in federal medical research money at risk, so law school faculty members sued, arguing that the law violated their rights to free speech under the First Amendment.
In an opinion by Roberts, the Court unanimously upheld the Solomon Amendment and rejected the claim by the law professors. In short, Roberts said that he who pays the piper calls the tune. “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept,” he wrote. The case had nothing to do with free speech, he continued, arguing that the Solomon Amendment “neither limits what law schools may say nor requires them to say anything.?…As a general matter, the Solomon Amendment regulates conduct, not speech.” In this way, Roberts diffused a potentially incendiary controversy.
The same was true for his first encounter with abortion. In 2003, New Hampshire passed a law prohibiting physicians from performing an abortion on a minor without giving one of her parents at least forty-eight hours’ notice. Physicians could dispense with the notification requirement if they could certify that the abortion was “necessary to prevent the minor’s death.” The main issue in the case was whether the state also had to establish an exception to the notice requirement if the minor’s health was at risk. For decades, the Court had insisted on “health” exceptions in abortion laws, and for just as long, abortion opponents had argued that such exceptions were so broad that they amounted to no restriction at all. The case concerned a fairly narrow corner of the law, but there is no such thing as an unimportant abortion ruling at the Supreme Court, and the case seemed likely to offer the first clues as to how the Roberts Court would deal with the most fraught topic on its agenda.
But Roberts, with the unanimous agreement of his colleagues, managed to avoid a major confrontation. The lower courts had invalidated the entire New Hampshire law when they could have just evaluated the contested portion; the justices thus resolved the case on procedural grounds, sending it back for further review (and, perhaps, some sort of compromise settlement). This kind of opinion—avoiding a hot controversy if at all possible—was a classic O’Connor strategy, and it was fitting that Roberts assigned her the opinion.
Ayotte v. Planned Parenthood of Northern New England would be the final majority opinion of Sandra O’Connor’s quarter century as a justice—and an apt summary of her extraordinary influence on the Court and the nation. “We do not revisit our abortion precedents today,” she began, but she did take the time to offer a summary of that law. “We have long upheld state parental involvement statutes like the Act before us, and we cast no doubt on