Supreme Court Keeps DADT Alive During DoJ’s Appeal Circus. Oh, And Elena Kagan Ducked Out Of This One
Denying the Log Cabin Republicans’ request to knock down the Ninth Circuit’s stay — which kept DADT alive despite a federal judge ruling it unconstitutional — the Supreme Court’s Justice Anthony Kennedy is keeping the policy in tact while the government exhausts its appeals. Today’s more interesting development, if there is one, is the decision of the court’s newest inductee Elena Kagan to recuse herself from the decision, indicating she won’t be a part of the nine-person bench when LCR’s lawsuit lands before the Supreme Court. That could mean the decision would reach a 4-4 split, thus upholding the Ninth Circuit’s decision — which has a decent shot of upholding Judge Virginia Phillips’ ruling that DADT is unconstitutional. But: With a 4-4 split, the ruling would thus apply only to the Ninth Circuit’s jurisdiction, not the national as a whole, though the asterisk in this scenario hinges on Phillips issuing a worldwide injunction against DADT, making the jurisdiction issue moot. And with Kagan seen as a likely supporter of repeal, the recusal is a blow to gay soldiers. Why did Kagan recuse herself from participation? Though the order nor the justices stated why (as is common practice), keep in mind Kagan represented the federal government as solicitor general in Witt v. U.S. Air Force; it appears any DADT matter, then, would represent a conflict for Kagan, or at least the appearance of one.