The Volokh Conspiracy

1. Circuit Split on Whether Burdens on Sexual Autonomy Rights Require Heightened Scrutiny: As I noted below, there's now a split on the subject between the Ninth and the Eleventh Circuits, and the question extends far beyond "Don't Ask, Don't Tell." (The Eleventh Circuit decision, for instance, upheld Florida's ban on adoption by homosexuals; that case might well come out differently under heightened scrutiny.) Such circuit splits are usually seen by the Court as counseling in favor of agreeing to hear the case.

On the other hand, it's only a 1:1 split now, as best I can tell, and this is the very sort of area where the Court might want to see more discussion by lower courts (as well as more similarity among the particular policies involved in the cases).

2. Interference with Federal Statute and Military Policy: A court's striking down a federal statute — or an important executive policy — is also often seen by the Court as counseling in favor of agreeing to hear the case.

Here, though, the Ninth Circuit didn't strike down "Don't Ask, Don't Tell," but just remanded to the trial court to consider arguments about whether the policy is indeed necessary to protect unit cohesion. This means there's no final judgment below, an important factor that has traditionally counseled against Supreme Court review, especially in state cases but also in federal cases like this one. It also means that the Court won't have much of a factual record on the necessary-to-protect-unit-cohesion issue; where there's some possibility that the factual record may be relevant, the absence of such a record at this stage might lead the Court to want to wait until the trial court finds the facts and the Ninth Circuit then gets another change to review it. And the lack of a final decision means that the government can't easily argue that the Ninth Circuit decision is frustrating important military judgments — the government hasn't been enjoined from implementing the "Don't Ask, Don't Tell" policy.

3. The Solicitor General's Decisions: Of course, the Court is sure not to grant certiorari until the government asks for it. The government will likely choose to ask the Ninth Circuit to rehear the case en banc first; an 11-judge en banc panel may well reverse the panel decision. The Ninth Circuit is on balance considerably less liberal than this particular panel; it has 11 Reagan/Bush Sr./Bush Jr. appointees among its active judges (including Chief Judge Kozinski, who is guaranteed to be on any en banc panels), and 16 Carter/Clinton appointees. A majority-Republican en banc panel is still unlikely given this distribution, but the en banc panel is likely to be more conservative than the 3-judge panel in this case (two Clinton judges and a senior judge appointed by Carter).

If the Ninth Circuit refuses to take the case en banc, or takes it but affirms the panel decision, then I suspect that the current Administration — or a McCain Administration — would petition for certiorari right away, rather than going on to a trial (though that's not certain). On the other hand, en banc review might put the decision off until after the election, and a possible Obama (or long-shot Clinton) victory. At that point, it seems likely that a Democratic Administration would at least wait until after the trial and subsequent appeals.