Hug of War
The Supreme Court considers the risks and rewards of forced association
Former U.S. Solicitor General Gregory G. Garre represents Hastings, and he's only about a minute into his presentation when the chief justice stops him to ask about the written policy and the policy he's describing. Scalia jumps in to ask whether the written policy is no longer operative. Garre starts to say, "No," but Scalia cuts him off: "No, what? No, it's not operative or no, you are not telling me that?" Alito jumps in to ask, "Do you think this case deserved a two-sentence decision in the 9th Circuit?" Alito then answers his own question: "The answer is yes, this case, which has produced hundreds and hundreds of pages of amicus briefs, deserved two sentences in the court of appeals?"
Scalia says that Hastings hasn't applied its all-comers policy to all student organizations, and Roberts notes that other groups have bylaws that restrict membership to those who "can't join unless they sign on the dotted line that they believe in the objectives of the organization."
Garre: "There is a fundamental difference between a group that says people of a particular sexual orientation are not allowed to become members—"
Roberts: "It has nothing to with sexual—"
Scalia: "They don't say that. …"
When Garre asks whether he should answer Scalia or Roberts first, Roberts grins: "No, start with mine." But when Garre starts, Roberts shuts him down: "It seems to me that your position is continually evolving, wherever the First Amendment pressure comes."
Scalia observes that the alleged Hastings all-comers policy is bizarre: "It is so weird to require the—the campus Republican club to admit Democrats, not just to membership, but to officership. To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That's crazy." Then Alito asks what happens if a small Muslim group that has 10 students is required to accept anybody, so that "50 students who hate Muslims show up and they want to take over that group?" After a long back and forth among Alito, Roberts, and Garre, Alito concludes: "So, if—if hostile members take over, former members of CLS can just form CLS 2?"
Garre keeps trying to reboot. In his view this case has nothing to do with the possibility that campus groups may be overrun with their enemies since there is no evidence that this has ever happened. He says that "CLS's position depends on the dark notion that students who would not have any interest in joining a group with different viewpoints on certain issues except to disrupt that group. And I think that greatly undersells the intellectual curiosity of students. It greatly undersells the fact that groups have many different interests and perspectives."
But even the court's last California hippie, Breyer, isn't sure he quite buys the idea of a campus policy requiring every student group to take in anyone who professes interest. He says: "You can imagine a school in the '60s that said that we think the way to advance learning is everyone gets together in a nice discussion group and hugs each other and talks. Now that's a possible educational theory. ... But what do I do with this case? How can I say whether this, 'hug your neighbor policy' is—how do I evaluate that?"
It's clear from today's argument that exposure to radically different viewpoints doesn't always result in greater mutual understanding. Watching the court work today, it seems maybe forced exposure to people unlike us promotes even more fear and resentment. Maybe Garre is right, and students will still find a way to associate with people who hold very divergent beliefs and not just because they seek to overwhelm and destroy them. But it's difficult to see how that can happen on college campuses when it's happening less and less often at the Supreme Court.
Dahlia Lithwick writes about the courts and the law for Slate.