Here’s a legal analysis from SCOTUSblog, which addressed in part the legal implications of Kagan’s recusal.
The Supreme Court on Friday allowed the “don’t ask, don’t tell” policy on gays in the military to remain in place while a federal appeals court considers the issue.
The court did not comment in denying a request from the Log Cabin Republicans, a gay rights group, to step into the ongoing federal court review of “don’t ask, don’t tell.” The Obama administration urged the high court not to get involved at this point.
Last month, a federal judge ruled that the policy violates the civil rights of gay Americans and she issued an injunction barring the Pentagon from applying it. But the San Francisco-based appeals court said the policy could remain in effect while it considers the administration’s appeal.
President Barack Obama has pledged to push lawmakers to repeal the law in the lame-duck session before a new Congress is sworn in. But administration lawyers have in the meantime defended “don’t ask, don’t tell” in court.
The policy, which prohibits gays and lesbians from serving openly in the military, was lifted for eight days in October after U.S. District Judge Virginia Phillips ruled that it is unconstitutional. The Obama administration asked the appeals court to reinstate the ban until it could hear arguments on the broader constitutional issues next year.
Justice Elena Kagan did not take part in the court’s consideration of the issue. Kagan served as the administration’s chief Supreme Court lawyer before she became a justice in August.
While it was not a surprise that Justice Kagan had opted not to take part in the order, that was nevertheless a significant development. It raised the prospect that, when the constitutional challenge reached the Supreme Court, the Justices might split 4-4 on it; that is always a risk when only eight Justices are taking part and the issue is a deeply controversial one. Should the Ninth Circuit Court upheld the policy, that result would simply be affirmed; without an opinion, if the Justices were actually to divide 4-4 in reaction to it.