Since this news hit, many LGBT blogs are ready to burn Obama to ashes. But me, I had to find the truth, so I found this bit of info that's helped me understand what REALLY happened.
The action taken today was denial of certiorari, which ultimately means that there were not at least four justices willing to accept the case. So, today’s action was not a decision on the merits of the case; the Supreme Court did not rule on the constitutionality of Don’t Ask, Don’t Tell.
What’s more, the decision, particularly coming right now, likely tells us little about what the members of the Court actually think about the constitutionality of the policy. Why? Because a justice, say Justice Ginsburg, might believe the policy is unconstitutional but could vote against cert because she was uncertain of the Court’s other members’ views and did not want to risk losing the argument. Additionally, with the Court is in the midst of a personnel change, I’d think we’re unlikely to see many high-profile, likely 5-4 outcome case, cert grants before a new justice takes the bench.
Finally, and perhaps most importantly, this case came to the Court with a very odd background posture. As detailed here, the Servicemembers Legal Defense Network, a legal group dedicated to supporting lesbian and gay soldiers, had been involved in this case, originally representing the 12 individuals challenging the policy. The organization, however, was no longer representing James Pietrangelo when he sought certiorari. SLDN continued to represent the other 11 individuals and filed a brief opposing having the Court accept this case. The lawyers representing the 11 wrote:
Petitioner and the eleven Cook respondents originally filed a single complaint challenging the constitutionality of DADT, on its face and as applied to them. The district court dismissed the complaint for failure to state a claim, without allowing any opportunity for discovery or the compilation of a factual record. Petitioner seeks review of the First Circuit’s decision affirming that decision.
The Cook respondents agree that the court of appeals erred; that DADT is not only bad policy but violates, on its face and as applied, the constitutional rights of gay, lesbian, and bisexual Americans; and that the issues at the heart of this case may at some point require resolution by this Court. If the Court grants review in this case, the Cook respondents will support reversal of the judgment below. Unlike petitioner, however, the Cook respondents believe the Court would be better advised to defer review at this time.
So, this was not even a case that the legal organization dedicated to helping to overturn this policy — with support from lawyers at WilmerHale — thought should be heard by the Supreme Court.
Then, in an even more odd turn, Pietrangelo filed a brief with the Supreme Court seeking to strike, or toss out, the SLDN brief. He argued that this should be done because the group had earlier been representing Pietrangelo as well. SLDN then filed a brief withdrawing from representation of the other 11 individuals, noting that it was doing so “in order to avoid any possibility that this dispute between petitioner and counsel might prejudice either the Cook respondents [the other 11 individuals] or petitioner in this proceeding.” Substitute counsel replaced SLDN and the WilmerHale lawyers representing the “Cook respondents.”
In short, I don’t think that this is a case that anyone should want to be the Supreme Court challenge to Don’t Ask, Don’t Tell. The Court is experiencing change in its membership, the factual record is not well-developed (which we definitely want since the factual records in so many of these cases are very compelling, as with the case of Lt. Dan Choi), the 12 individual being kicked out of the military in the case disagree on whether the case should be heard, and the organization existing solely to fight Don’t Ask, Don’t Tell is no longer involved in the case.
Yes it long, but I hope it helps folks process what happened.
Thanks to
JMG for posting this and
Law Dork for researching the info
