WILLIAMSBURG, Va. -- You won't see John Roberts among the head shots of Supreme Court justices posted at the William & Mary Law School, site of the 2005-06 Supreme Court Preview. Instead of Roberts' face in the space reserved for the chief justice there is a question mark, a reflection of Roberts-like caution on the part of the organizers of this annual conference on the new court term. After all, Roberts hasn't been confirmed yet.

		Michael McGough is an editor at large in the PG's National Bureau (mmcgough@ nationalpress.com).

But if Roberts is missing from the tableau of justices outside the moot courtroom, he nonetheless has been a brooding omnipresence at this conference, both at sessions analyzing cases on the court's docket (how will Roberts vote?) and in more freewheeling seminars on "Confirmation Politics" and "Looking Ahead."

The Ghost of Roberts Past -- the recent past of his Senate confirmation hearings -- even haunted the spectacle that launched this year's preview, a moot court in which a "Supreme Court" comprising black-robed journalists and law professors heard arguments in a dress rehearsal of Rumsfeld v. FAIR, a case that will come before the real Supreme Court on Dec. 6.

In Rumsfeld (as in Secretary of Defense Donald) v. FAIR (the Forum for Academic and Institutional Rights, representing 31 American law schools), the justices will review a decision by the 3rd U.S. Circuit Court of Appeals in Philadelphia blocking the enforcement of a law known as the Solomon Amendment.

Named for the late U.S. Rep. Gerald Solomon, R-N.Y., it requires universities receiving federal funds to grant military recruiters access to the campus "in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer."

Why would American law schools close the door to recruiters from the military? One might think it has something to with opposition to the war in Iraq, but the real battleground is the culture war over homosexuality. The law schools complain that the military's ban on openly gay service members violates the anti-discrimination policies the schools impose on any law firm, business or foundation seeking to recruit on campus.

The 3rd Circuit found that the Solomon Amendment violated the law schools' First Amendment rights in two ways, by interfering with their "expressive association" and by using federal funds to compel the schools to endorse the military's anti-gay message. Ironically, in concluding that the presence of military recruiters would muddy the law schools' message of tolerance for homosexuals, the 3rd Circuit cited a 2000 case widely regarded as a defeat for gay rights.

In Boy Scouts of America v. Dale, the Supreme Court ruled that forcing the Scouts to accept an openly gay scoutmaster burdened the group's desire not to "promote homosexual conduct as a legitimate form of behavior." In the same way, the 3rd Circuit said, the Solomon Amendment forced law schools to "affirmatively assist military recruiters in the same manner they assist other recruiters, which means they must propagate, accommodate and subsidize the military's message."

Even without a faux John Roberts, the William & Mary moot Supreme Court ruled unanimously for Rumsfeld, after a spirited argument in which both the Boy Scouts analogy and the "compelled speech" theory encountered heavy weather.

For example, "Justice" Linda Greenhouse, the Supreme Court correspondent for The New York Times, asked Washington attorney Beth Brinkmann, representing FAIR, how she could say that the law schools were forced to channel the Pentagon's "Don't Ask, Don't Tell" policy on homosexuality "when the law school can put up a sign" on campus disagreeing with the policy? An even more telling point was made by "Justice" William van Alstyne, a William & Mary law professor. Van Alstyne asked Brinkmann if the Solomon Amendment wasn't similar to civil rights laws that require colleges and universities receiving federal funds to comply with anti-discrimination laws in all of their operations -- even when doing so might muddy a school's message.

This is where the recruiting case converges with two themes sounded by Democrats at John Roberts' confirmation hearing: Roberts' narrow interpretation of laws against discrimination in higher education and the possibility that, like the late Chief Justice William Rehnquist, Roberts might overturn acts of Congress because he didn't agree with its reasoning.

Roberts was faulted for memos he wrote as a Reagan administration lawyer in which he espoused a narrow view of Title IX, a law prohibiting sex discrimination in any educational "program or activity" receiving federal funds. Roberts had suggested that federal funds could be withdrawn only from a particular department that failed to comply with anti-discrimination laws, not from a college or university as a whole. After the Supreme Court embraced Roberts' "program-specific" interpretation of Title IX, Congress amended the law to make it clear that an entire university could be punished if one of its components was guilty of discrimination.

The latest version of the Solomon Amendment also casts its net wider than a particular university school or department. As interpreted by the Pentagon, the amendment calls for the cutoff of all federal funds to any law school that doesn't give military the same access as other recruiters as well as the withdrawal of Defense Department funds from other university departments.

So perhaps Roberts was right after all in arguing back in the 1980s that only the particular university department that flouts federal law should lose its funding? Don't expect his critics to make that admission, any more than they will praise Roberts if he and his colleagues on the court decide in Rumsfeld v. FAIR to defer to Congress' judgment that the national security requires military recruiting at law schools. What matters is practical results, not principles.