So as I understand the enterprise of internet prediction, if I make a prediction here about the outcome of FAIR v. Rumsfeld, it will be remembered if I am right but utterly forgotten with the other failed predictions of the day if I am wrong. So having watched the oral arguments televised in the Yale auditorium, I will make my no-more-informed-than-anybody-else prediction:

The Court will uphold the Solomon Amendment and the military exclusion 6-2. Justice Stevens (joined by Justice Ginsburg) will dissent, arguing that the military's access to campus is for all "functional" or "practical" purposes the same as everybody else's, and differs only in its expressive component. He will then either move to strike down the Amendment or, more likely, to construe it in accordance with the canon of constitutional avoidance and suggest that the law schools are in fact in compliance with it.

As to my own views, in case anybody was curious, I remain confused about the constitutional status of the freedom of association doctrine, in Dale and elsewhere, and also about the free speech unconstitutional conditions doctrine. I think that the military should not exclude openly gay servicemen, that law schools should not exclude discriminatory employers, and that Congress should not force the law schools to include employers it does not wish to. Everybody has acted badly.

The essays I referred to earlier by James Buchanan is now online. Akhil Amar's reply is not yet available. As more of these come online, I will have more thoughts.