The Log Cabin Republicans filed papers Friday asking the U.S. Supreme Court to reinstate a worldwide injunction on enforcement of the military’s “don’t ask, don’t tell” policy while the case is being litigated. (Appendix here.)
Judge Virginia Phillips originally upended the policy in a historic ruling last month that found the law unconstitutional, but the ninth circuit court of appeals stayed Judge Phillips's injunction pending appeal after the U.S. Department of Justice filed an emergency request.
Log Cabin's lead attorney in the case said the group was asking the Supreme Court to get involved because officials believed the ninth circuit had overreached when it suspended the injunction.
“We argue in this application that the ninth circuit order was arbitrary and an abuse of discretion and should be vacated immediately,” said Dan Woods of White & Case.
Richard Socarides, a New York lawyer and former LGBT adviser to President Bill Clinton, said the move was unusual because Log Cabin is effectively asking the Supreme Court to take sides very early in the process.
"It's rare for any litigant to pursue an interim stay issue all the way to the Supreme Court. It involves the court in the case at a very early stage of the appeals process and is often considered risky," he explained. "That said, I imagine the plaintiffs feel they don't have much to lose, even though the likelihood of success on this interim request is low. But if they do prevail, they would gain a lot of strategic leverage."
The appeal to Supreme Court justice Anthony M. Kennedy is seemingly a long shot. Justice Elena Kagan may have to recuse herself from the case based on her former role as solicitor general for the government while the case was in its initial stages. That would leave four conservative-leaning justices (John Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas) and three liberal-leaning ones (Sonia Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer). Justice Kennedy is considered the swing vote, as always, but Kagan's recusal leaves the left one justice short.
The executive director of Log Cabin lamented the fact that the request was necessary in the first place.
"It is unfortunate the Obama Justice Department has forced the Log Cabin Republicans to go to the Supreme Court," R. Clarke Cooper said in a statement.