Justice Kagan recuses herself from DADT case

by on November 12, 2010  •  In Military, Supreme Court

In a thoroughly unsurprising decision, the Supreme Court today denied the application by Log Cabin Republicans to reinstate Judge Phillips' injunction blocking enforcing of the DADT policy. LCR lawyers sought to lift the stay granted by the Ninth Circuit, but the Court left it in place. 

What was noteworthy is that Justice Kagan took no part in the deliberation or decision. There was no reason stated for the recusal, but it likely was based on Justice Kagan's participation as Solicitor General in other challenges to DADT. It means that if the repeal effort fails and the litigation continues, she will not participate if and when a DADT case reaches the Supreme Court. 

With the policy remaining in effect, the LCR lawyers may well ask the Ninth Circuit to expedite the appeal, as has been ordered in the Prop 8 case before the same court.



4 Responses to Justice Kagan recuses herself from DADT case

  1. Jay November 12, 2010 at 7:37 PM

    Why is it that her recusal at this stage means that she will necessarily recuse herself later if this case reaches the Supreme Court? I realize that she said that she would recuse herself from cases in which she was involved as Solicitor General, but no one can force a Supreme Court Justice to recuse herself. Is there some rule that if a Justice recuses herself from participating in a decision regarding a stay, she must recuse herself from hearing the case itself if it reaches the Supreme Court?

  2. Jay November 12, 2010 at 7:45 PM

    If I may, I have another question related to the DADT appeal. I noticed that the Justice Department’s argument in the litigation over the stay of the injunction was replete with dark suggestions that not enforcing DADT would cause “irreparable damage” to the military. These statements seem to be supported by affidavits from various Pentagon officials. Now at the same time, President Obama, Secretary Gates, and Chairman Mullen are on record saying that NOT repealing DADT would adversely affect military readiness. Is there an ethical issue here? Can the Justice Department be saying thing while the Commander in Chief says another? I am sure that the Republicans who filibuster DADT repeal will be quoting the Justice Department filings as a reason not to repeal the policy, but I am more interested in terms of the ethical responsibility of Justice Department lawyers. Is there an ethical problem in making statements that seem to contradict the President and other military leaders?

  3. Nan Hunter November 13, 2010 at 10:38 AM

    Re recusal – No, there is no rule that would mandate her recusal if the case comes back to the Court, but it is difficult to imagine why she would come to a different conclusion about recusal later in the same case. So I think it’s a good bet that she would do the same thing.

    As to the irreparable damage argument – DoJ is arguing that allowing the injunction to take effect would be harmful because it would require immediate compliance, as compared to the (in their view) more deliberative process called for by the legislation. It is somewhat disingenuous because even if the injunction took effect tomorrow, the military could put in place whatever transition processes they wanted, so long as the actual discharges stopped. Ironically, the Gates memorandum that requires sign-off by a civilian official before anyone else is discharged probably has the same effect, at least temporarily.

    DoJ is arguing that the enforcement of the injunction would cause irreparable harm at the same time that the administration is arguing that the DADT policy is harmful. It isn’t technically contradictory or unethical – just a bit nonsensical.

  4. Jay November 13, 2010 at 3:00 PM

    Thanks again for your wonderful blog, which is always informative and interesting, and also for your willingness to answer what might seem like stupid questions!

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