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 [sic] the policy, that result would simply be affirmed; without an opinion, if the Justices were actually to divide 4-4 in reaction to it....
If it should turn out that Congress does not repeal the policy, despite the requests by President Obama and some of the Pentagon’s top civilian and uniformed officers, the constitutional challenge in the Log Cabin Republicans’ case would be the only potential way to end the policy, at least for several more years.
November 12, 2010
The 9th Circuit stay on the order ending DADT will keep the policy in effect pending appeal. There were no dissenting opinions, and, most interestingly Justice Kagan did not participate: