What Next for Don't Ask, Don't Tell?

Recall that last month, the Ninth Circuit parted from several other federal courts, and held that Don't Ask, Don't Tell might be unconstitutional. It then concluded that the case should be remanded to the district court, "to develop the [factual] record" as to whether Don't Ask, Don't Tell "significantly furthers the government's interest [in 'unit cohesion' and the like] and whether less intrusive means would achieve substantially the government's interest."

It wasn't clear, though, that -- even if the Ninth Circuit refused to rehear the case en banc -- either the government or the challengers would ask the Supreme Court to hear the case (the government asking for Don't Ask, Don't Tell to be upheld even without further district court hearings, and the challengers asking that it be invalidated even without further district court hearings). Nor is it clear that the Supreme Court would agree to hear the case even if it was asked to do so, given that the case had been remanded to the trial court. The Supreme Court tells to be reluctant to consider lower court cases, even federal court cases, when there's no final judgment below, though that's not a categorical rule.

The First Circuit decision may affect this analysis, but it's not clear. (I assume for purposes of this discussion that the First Circuit refuses to rehear the case en banc.) The challengers will be free to petition for certiorari, and there is a final decision here, so that procedural obstacle isn't present here the way it is in the Ninth Circuit. What's more, there is a circuit split -- several circuits have upheld Don't Ask, Don't Tell, but the Ninth Circuit adopted different reasoning that has led to a different intermediate result (remanding to the district court instead of upholding the policy).

On the other hand, the split is "soft," in that the bottom line even in the Ninth Circuit may end up being the same as in the other circuits. And the factfinding in district court on remand from the Ninth Circuit may well illuminate the issue, so that there might be good reason for the Court to wait.

The most important factor here, I think, will be whether the Administration files a brief in support of the certiorari petition, arguing that the Court should hear the case, though of course they would want the Court to affirm rather than reverse. If the Administration so argues, perhaps on the grounds that the government shouldn't be burdened with defending the case further in the Ninth Circuit (and perhaps based on the unstated concern that the longer it takes for the issue to reach the Court, the more likely it will be that the Court's personnel will change in a way that favors the challengers), then I expect the Court will be inclined to agree. The Executive Branch's views on whether to grant certiorari in a case are generally quite influential.

On the other hand, if the Administration argues that the Court should wait until after the factfinding in district court on remand from the Ninth Circuit is done, and the Ninth Circuit has another chance to review the case, then the Court would likely deny certiorari and leave the matter for a later day. That, at least, is my tentative sense of the matter.