On Friday, we reported that Don't Ask, Don't Tell likely won't be repealed in the courts because Supreme Court Justice Elena Kagan recused herself from a hearing on the ongoing case out of California last week. That leaves four votes that can be counted on to oppose gay rights -- those of Roberts, Alito, Thomas and Scalia -- and four votes that can be expected to move for repealing DADT.
There's another way of looking at it. From Balkinization:
This is because if the Supreme Court reviews the Ninth Circuit, it will likely split 4-4, thus automatically affirming the Ninth Circuit's decision.
In that way of looking at it, if the Ninth Circuit were to strike the policy down -- or to uphold it -- that would be the final word.
(H/T Andrew Sullivan)
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That's what I'm thinking, too. I have said it before and I'll say it again, the President COULD make an Executive Order, but
1. A different President could repeal THAT Executive Order
2. Congress created DADT, should be repealed and STICK. Either by Congress or SCOTUS place such a high priority on DADT that we need to spend an entire session or two of Congress trying to get it back.
It is unconstitutional to have one segment of the population, either public, private or military answer to their own standard and it doesn't apply to all.
We have many opposing views, just like when they wrote and signed the Constitution. Not likely we will all agree on all things, but there is the equal "protection of the laws" factor that is gone over and over. We have to admit that until the laws are all equal, for all people, we will have to keep doing this.
I say, make the laws all equal for all people and we can then see the end of lawsuits and elections and court cases that claim inequality.
That said, we will probably always have people saying your right is conflicting with my right.
a different President could resegregate the military.
and it should be noted that conservatives don't believe in equal protection of the laws; that's one of the hallmarks of conservatism, a tolerance for inequality (provided they're the animals that are more equal than others, certainly) - http://bit.ly/cZ8DAf
So I am confused. If SCOTUS doesn't call DADT unconstitutional, then what exactly is it that the Supreme Court does? I believe I learned in school that they upheld the constitution? Or was I mistaken? Oh yeah, now I remember, they changed their job description when they declared Bush president.
... okay I'm going to go ahead and blame "Monday" for my lack of legal savvy this morning, but why is Elena Kagan having to recuse herself? and is that a choice she is making or is it a legal obligation / official conflict of interest? confused. embarrassed.
OH, and while we're talking about impartiality and conflicts of interest --- couldn't one argue that being a devout christian/catholic is a conflict of interest on any case involving the rights of teh gay?
just sayin' ;)
Yeah, and I would have thought that Ginny Thomas leading a major Tea Party group should have required old Pubic Hair to recuse himself from the Citizens United case, but that obviously didn't happen.
.
well that didn't work..sorry.
Jill, don't be embassassed. Most everyone I know was confused and asking 'why' too. As is common practice, the order nor the justices stated why - but, most think, as enferoui said below, it is due to when Kagan represented the federal government as solicitor general, specifically 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 (?).
Jilly-
Kagan recused herself presumably because her work as Solicitor General touched on this case in some way. Solicitors General are typically involved--even at the early stages--in any federal litigation in which the government is either a party or has an interest that may eventually reach the Supreme Court. That she recused herself does not necessarily mean that she has any additional conflict of interest beyond her work as SG.
Kagan recusing herself is a solid, ethical decision. I'm impressed, but also disappointed. There have been more obvious cases in the past where a Justice probably should have recused himself but didn't.
Yep... http://www.americablog.com/2009/06/roberts-scalia-thomas-and-alito-whats.html
Then there's this argument in favor of repealing DADT. http://www.palmcenter.org/research/nations%20allowing%20service%20by%20openly%20gay%20peopleI believe the Congress needs to do this, OR SCOTUS, could be the send it back to the lower court decision.
correct link
http://www.palmcenter.org/research/nations%20allowing%20service%20by%20openly%20gay%20people
Yet another reason that we should all push the Senate to repeal DADT during the lame duck session. Here is contact information for some key Senators to contact.
http://www.winningprogressive.org/call-on-the-senate-to-repeal-don%e2%80%99t-ask-don%e2%80%99t-tell-during-the-lame-duck-session
Unfortunately, I don't think that would settle it, because a split court doesn't establish precedent. The lower court ruling would just stand without any precedent being gained from it for anyone else.
I don't know whether that would be considered a lack of precedence. And more solid precedents have been overturned. Nothing is ever absolutely final. But maybe Something Esq (sorry) can shed more light on this.
I was under the impression that legal precedent is established at any judicial level where a court's ruling stands, not just by SCOTUS rulings.
However, I am not an Esq.
Chris is right. A 4-4 decision from the Supreme Court would leave the lower court ruling in place, without establishing any precedent that is binding upon the entire nation. This is because without a majority vote (e.g., a 5-4 decision), the Court would not issue an 'opinion of the Court', and thus would not actually reach a judgment in the case, either affirming or reversing the lower court ruling. Whatever opinions are issued--and there would likely be at least two--would contain nothing but 'dicta' (arguments and analysis that are not controlling points of law). Such arguments might be cited by the Justices in future cases (in the same way that Justices writing majority opinions will sometimes cite language from dissenting opinions with which they agree), but nothing in any of the opinions issued from the 4-4 split would be binding upon any of the Circuit Courts of Appeals. The judgment issued by the 9th Circuit would remain binding upon the 9th Circuit, but it could potentially have a wider impact, depending on how the 9th Circuit rules on the reach of Judge Phillips' worldwide injunction against DADT.
This is all going to be very interesting . . .
yes, as susanb notes, Justice Kagan recusing herself in this case is a solid, ethical decision (and done for the reasons noted by enferoui) AND, i'd like to propose, as with Keith Olbermann's suspension, demonstrates a clear distinction between those on the left (which Kagan allegedly is) and those on the right like Scalia (Cheney v. US District Court for the District of Columbia), or Alito, claiming it's "not important" that he attends conservative fundraisers like the American Spectator one.
and yes, it is a little disappointing, but heroes are always 'hampered' in playing by the rules or a code of conduct, while villains are not, but it is that which partly makes that distinction.