"The 'ridiculously obvious' point that the Supreme Court is 'a justificatory instrument' for military policy."

Adam Liptak taps lawprof opinion on why we lost the Solomon Amendment case:

There is the reactionary Supreme Court hypothesis. William N. Eskridge Jr., a Yale law professor who helped shape the losing side's arguments, said the defeat demonstrates the "ridiculously obvious" point that the Supreme Court is "a justificatory instrument" for military policy.

Then there is the clueless law professor theory.

Peter H. Schuck, a Yale law professor who thought the law schools' legal position was misguided, said that many professors were so indignant about the military's treatment of gay men and women and so scornful of the military itself that their judgment became clouded.

"There is often a feeling that if something is morally wrong it must be legally wrong and that clever arguments can bring those two things into alignment," Professor Schuck said....

"Unfortunately," said Laurence H. Tribe, a law professor at Harvard, "a great many very smart people were so close to the issues that they failed listen to those of us who said this was a really difficult argument."

I don't see how making an argument implies that you don't realize it's a difficult argument. And I don't think it's clueless to decide to go forward with an argument that you know is a big uphill battle. When you're fighting for a principle, even a losing battle can be worthwhile.

As for that ridiculously obvious justificatory instrument business... It doesn't explain why not one Justice even concurred to say something nice about the lawprofs. And it doesn't acknowledge that military power is one of the things that is authorized by the Constitution the Justices must interpret and enforce.