2008—A rogue Ninth Circuit panel rules 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 governing homosexuals in the military “satisfy an intermediate level of scrutiny under substantive due process.” Among its sloppy errors, the panel neglects even to consider whether the military context calls for a lower standard of scrutiny.

In a petition for rehearing en banc, the United States argues that the Ninth Circuit decision “creates an inter-circuit split, … a conflict with Supreme Court precedent, and an unworkable rule that cannot be implemented without disrupting the military.” But in one of her early actions as Solicitor General—and contrary to her confirmation commitment to defend the “Don’t Ask, Don’t Tell” law “with vigor”—Elena Kagan declines to seek Supreme Court review of the decision.