Roberts and the Solomon Amendment case.

Jeffrey Toobin has a big piece in the new New Yorker about the Solomon Amendment case, FAIR v. Rumsfeld. He speculates about how John Roberts might view it:

Even though the FAIR case is rooted in the law schools’ attempt to address discrimination on the basis of sexual orientation, the case is not, strictly speaking, about gay rights. It is, rather, a First Amendment case, about whether the Solomon Amendment impinges on the right to freedom of speech at universities, and whether the government has the right to use the leverage of federal aid to insist that the military be treated like other employers....

Most observers regard the legal arguments of both sides in FAIR as at least plausible, but most of the current Justices would probably want to defer to the needs of the military. Roberts’s history suggests that he would do the same; the concept of judicial restraint means a reluctance to invalidate the actions of the other branches of government....

Is Roberts committed to some sort of across-the-board judicial restraint, such that he'd be unsympathic to First Amendment arguments raised against the government? Here's Toobin's evidence that he is:

Roberts believes in the concept of judicial restraint. In a recent opinion in the D.C. Circuit, he chided his conservative brethren in a case about the regulation of raw materials used in making drugs, admonishing them, in Justice Felix Frankfurter’s words, “to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.” In an answer to the senators about his judicial role models, he wrote, “I admire the judicial restraint of Holmes and Brandeis, the intellectual rigor of Frankfurter, the common sense and pragmatism of Jackson, the vision of John Marshall.”

That first part is about deciding questions on narrow grounds rather than enunciating broad rules, which is not relevant to which way he'll decide the FAIR case, only to how he'd frame the holding.

The list of favorite judges means something more, but Holmes and Brandeis don't represent judicial restraint across-the-board. Holmes is the key figure in the development of free speech rights against government. (And Brandeis joined him.) What Roberts served up is a list of luminaries there, standing for different things, with only Holmes and Brandeis representing restraint. Others he admires for other things -- intellectual rigor, pragmatism, the vision thing. Who's to know what this amorphous tribute means about how Roberts will actually decide cases?

I'm rather thinking Toobin had a big piece on the FAIR case ready to go, and he tacked on this speculation about Roberts. Good enough. But it doesn't take us very far. Still, the piece is well worth reading for an explanation of the FAIR case, especially the litigation strategies of the parties.