Friday, November 12, 2010

Don't Ask, Don't Tell: The Ninth Circuit as Court of Last Resort

Jason Mazzone

It comes as no surprise that the Supreme Court has refused to lift the Ninth Circuit's stay of Judge Virginia Phillips' injunction (which barred enforcement of Don't Ask, Don't Tell) in Log Cabin Republicans v. United States. But one question is now answered: Justice Elena Kagan has recused herself from the case. This represents some very good news for the Ninth Circuit: its decision on the merits will almost certainly be the last word in the case. This is because if the Supreme Court reviews the Ninth Circuit, it will likely split 4-4, thus automatically affirming the Ninth Circuit's decision. The Ninth Circuit has something of a reputation for zany decisions that end up being overturned. Let's see what it does now that it knows it isn't going to be reversed.

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