Yesterday, I took a brief look at whether the U.S. Supreme Court would reinstate the stay of the California District Court ruling that the military Don't Ask Don't Tell policy is unconstitutional. Some commenters questioned whether the Department of Justice would appeal the Ninth Circuit's lifting of the stay, and some contended that the Administration could not bring the evidence necessary for a continued stay.
Looking at the initial stay granted by the Ninth Circuit back in November, however, a very different picture is presented. Back in November, the Ninth Circuit said (2010 U.S. App. LEXIS 22655) that a stay was mandated because the case raised "serious legal questions," Acts of Congress are presumptively constitutional, judicial deference to Congress is at its apogee when Congress legislates under its authority to raise and support armies, and the district court's analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal, and courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncements of sister circuits.
"Accordingly, we conclude that the government's colorable allegations that the lack of an orderly transition in policy will produce immediate harm and precipitous injury are convincing. We also conclude that the public interest in ensuring orderly change of this magnitude in the military--if that is what is to happen--strongly militates in favor of a stay. Furthermore, if the administration is successful in persuading Congress to eliminate § 654, this case and controversy will become moot." (citations omitted)
So what's changed?
All sorts of things have changed since November, of course, but in its recent ruling lifting the stay, the Ninth Circuit zeroed in on the fact that the Department of Justice, in its brief to the Court, did not contend that DADT is constitutional. That, to my mind, is not the same as contending that it is unconstitutional. It's simply saying that the government's brief didn't push that argument. The Ninth Circuit noted that the Administration thinks that laws involving sexual orientation as a classification are subject to a higher standard of constitutional review, but stopped well short of saying that either the Administration, or the Court, thinks that the higher standard applies in this case to make the law unconstitutional.
Moreover, in its previous ruling granting the stay, the Ninth Circuit made much of the fact that judicial deference must be given to Congress in military decision-making. To Congress, not to the Executive Branch. This isn't to say that no deference is due to what the Executive Branch thinks about an Act of Congress, but the question of which branch wins, legislative or executive, when the two are in conflict, is not entirely clear. I'm not sure what the Supreme Court would say on that question in this context, and I'm not sure that anyone can say.
Of course, I am happy that the Ninth Circuit has lifted the stay. DADT is a bad policy, and it should go as soon as possible. But in addressing the question of what a court will do, one must look with clear-eyed realism at the legal precedents, the political bent of the judges, and the evidence. I'm all for the rose-colored glasses in other things, but not when it comes to the law.
The Ninth Circuit also noted that the process of repealing DADT is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. Training is all well and good, and bravo for that, but does it change the Ninth Circuit's initial determination that lack of an orderly transition in policy will produce immediate harm? How much training has there been, and is it sufficient to ensure an orderly transition? I have no idea what the answers to these questions are. How can one predict what the Supreme Court's answer will be if the underlying evidence necessary to answer it is unknown?
And what was all that jazz that the Ninth Circuit said back in November about courts in the Ninth Circuit not granting relief that would cause substantial interference with the established judicial pronouncements of sister circuits? Is that no longer applicable?
I am as firm as anyone on the point that DADT is wrong and has got to go immediately. I'm firmer than most on the point that the similar policy enforced against transgender servicemembers is also wrong and has got to go immediately. But I don't see any courts rushing to ban enforcement of the military anti-trans policies. I raise this because it might be easier for some of you to see that constitutional questions abound with regard to the anti-trans policy, but the same questions apply mutis mutandis to DADT.
We don't even know, at this point, whether the Ninth Circuit or the Supreme Court agree on the underlying question of whether DADT is unconstitutional. How is it that six months ago the Ninth Circuit thought that the government was likely to succeed on the merits, and now they don't? In fact, the appeal from the District Court decision on the merits is still in process, and the Ninth Circuit or the Supreme Court could overturn that.
Politics, it is supposed by most people, does not enter into the legal determinations of courts. Of course, you and I know as wise insiders that is a naive view. The legal determinations in this case are thoroughly infested with politics, more than in most cases. It is entirely possible that the Administration will make the political decision to abandon the appeal on the merits of the case, and let the District Court ruling stand. It is also possible that the Administration will make the political decision not to appeal the Ninth Circuit's lifting of the stay to the Supreme Court. It is possible that, even if the Supreme Court were to consider the stay, it would uphold the recent Ninth Circuit decision. But both law and politics are complicated, and subject to pressures we know nothing about in back rooms.
We are far from home free on this one. We have been fooled in the past into thinking that we had won on this issue or that, and that we could ease up a bit now that our friends were in the house. Remember, Charlie Brown, Lucy wants you to think the football is there for the kicking, but we have been fooled before. Keep your eye on the ball.