On Friday, we reported that Don't Ask, Don't Tell likely won't be repealed in the courts because Supreme Court Justice Elena Kagan recused herself from a hearing on the ongoing case out of California last week.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)