Bench Memos

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SG Kagan’s Subversion of “Don’t Ask, Don’t Tell” Law


Well, that sure didn’t take long. 

As dean of Harvard law school, Supreme Court candidate Elena Kagan vehemently opposed military recruiting on the law school campus because she regarded the “Don’t Ask, Don’t Tell” policy imposed by federal law as “a profound wrong—a moral injustice of the first order.” Among her actions in opposition to the Solomon Amendment—the law denying federal funding to universities discriminating against military recruiters—Kagan signed her name to a Supreme Court amicus brief in the litigation (Rumsfeld v. FAIR) that offered a highly implausible reading of the Solomon Amendment that would have rendered it, as Chief Justice Roberts’s opinion put it, “largely meaningless.”  The Chief Justice’s opinion rejecting Kagan’s reading (and the other challenges to the Solomon Amendment) was unanimous. 


In the course of her confirmation process to become Solicitor General, Kagan assured senators that she would set aside her own personal views about the “Don’t Ask, Don’t Tell” law and would “with vigor” “advance … the interests of the United States, as principally expressed in legislative enactments and executive policy.”  (Response to Specter # 14.)  “Under prevailing Equal Protection law,” she emphasized, the “Don’t Ask, Don’t Tell” law is “subject to rational basis scrutiny,” and “the rational basis standard is very easy to satisfy.”  Indeed, “courts frequently grant Congress even greater deference than usual when military matters are involved.”  In enacting “Don’t Ask, Don’t Tell,” Congress “made extensive findings explaining the military’s recruiting policy,” and “[t]hese findings satisfy the Equal Protection Clause’s rational basis test.”  (Letter of Elena Kagan to Senator Specter, March 18, 2009, at 11 (responding to Sessions #3).)


Last May, a Ninth Circuit panel ruled in Witt v. Department of Air Force that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the “Don’t Ask, Don’t Tell” law “satisfy an intermediate level of scrutiny under substantive due process.”  Among its sloppy errors, the panel neglected even to consider whether the military context calls for a lower standard of scrutiny. 


In December 2008, six judges on the Ninth Circuit dissented from that court’s denial of a petition for rehearing en banc.  As Judge O’Scannlain wrote in his dissent, the panel’s ruling “is the first case in which a federal appellate court has allowed a member of the armed services to bring a substantive due process challenge” to the “Don’t Ask, Don’t Tell” law,” “contravenes Supreme Court precedent, including Lawrence, in the area of substantive due process, creates a circuit split, and stretches the judicial power beyond its constitutional mandate.”  In his separate dissent, Judge Kleinfeld faulted the panel for remanding the case to the district court to determine whether, under an intermediate level of scrutiny, whether application of the “Don’t Ask, Don’t Tell” law to the particular plaintiff “significantly furthers the government’s interest”:


The panel cannot mean that the district court should repeat the extensive congressional hearings that preceded adoption of the law, to determine whether the court agrees with the policy adopted.  But the panel does not say what sort of evidence the district court is supposed to consider, or precisely what factual question the evidence is supposed to answer.

A Solicitor General acting “with vigor” to “advance … the interests of the United States” would seek an immediate Supreme Court reversal of the Ninth Circuit’s rogue ruling, rather than require the military to undergo burdensome litigation in the district court under an amorphous standard—litigation, that in the event of a victory by the military, would leave in place the Ninth Circuit’s ruling.  The continuing existence of the Ninth Circuit’s ruling invites further lawsuits by additional plaintiffs before various judges, the predictable end result of which is chaos and confusion.

But, as the Wall Street Journal reports today:

The Obama administration has decided to accept [for the time being] an appeals-court ruling that could undermine the military’s ban on service members found to be gay.…
The administration let pass a May 3 deadline to appeal to the Supreme Court. That means the case will be returned to the district court, and administration officials said they will continue to defend the law there.

In a letter to the Senate dated April 24, Attorney General Eric Holder states that the decision not to seek review of the Ninth Circuit decision “was made after extensive consultation with the Department of Defense and is based on the longstanding presumption against Supreme Court review of interlocutory decisions as well as practical litigation considerations.”  Holder’s explanation makes little sense.  What Holder calls a presumption against review of interlocutory decisions is, at least for federal appellate rulings, only a prudential consideration, and that consideration is of little weight where, as here, (1) the court of appeals has ruled on a pure question of law (not a mixed question of law and fact that might benefit from further factual development); and (2) that ruling subjects a litigant—especially the military during a time of war—to litigation burdens that would be eliminated by a reversal.  The “practical litigation considerations” that Holder invokes cut in favor of immediate review.

Holder’s letter attaches a letter from DOD’s general counsel to Kagan stating that DOD “has no objection to a remand in the case” and reciting the fact that the Ninth Circuit’s decision “was interlocutory in nature.”  I’d be surprised if Kagan didn’t draft (or revise) or pre-approve the letter herself.

Kagan’s failure to seek immediate review of the Ninth Circuit’s ruling is either a remarkably poor judgment call or a betrayal of her promise to set aside her personal opposition to “Don’t Ask, Don’t Tell” in representing the interests of the United States.  Alas, I have too much regard for Kagan’s legal ability to consider the first alternative to be plausible.

Tags: Whelan


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