LCR has appealed to the Supreme Court to life the Ninth Circuit's stay of District Court Judge Virginia Phillips' injunction. Ari Ezra Waldman has the most detailed analysis I've seen so far.
Today, the Log Cabin Republicans (LCR), through their attorneys at White & Case LLP, filed an application . . . with the Supreme Court to vacate the stay that the Ninth Circuit placed on Judge Virginia Phillips's decision that found the "Don't Ask, Don't Tell" law (DADT) unconstitutional. It was their next move and a good one, but the odds of success aren't great.
[. . . ]
At the center of LCR's argument to the Supreme Court is that the Ninth Circuit "abused its discretion" when it granted a stay based on incorrect reasoning and a refusal to use the proper legal test for stays. An "abuse of discretion" is a tough standard to meet simply because appellate courts have discretion to issue stays. But what they don't have discretion to do is to grant stays without requiring the party seeking the stay to prove, among other things, a "likelihood of success on the merits." All that means is that in order to properly get the stay at the Ninth Circuit, the government had to prove that it was likely to win its appeal on the merits, likely to keep DADT as good law. The Ninth Circuit, LCR argues, didn't really do that. Nor did the Ninth Circuit engage in the required balancing of harms. Before getting a stay, the government was also supposed to show that any hardship to the military or the government if there were no stay would outweigh any hardship to LCR with a stay. Finally, LCR points out that the Ninth Circuit accepted the government's injury argument based on mere speculation rather than actual evidence.
LCR's argument makes a lot of sense to me, especially since the Ninth Circuit apparently justified its stay on Judge Phillips's decision being at odds with other court decisions on DADT and generally failed to require the government to justify a stay. A stay is an example of "extraordinary relief," meaning that you don't get it just because you want it, you have to prove a lot -- meet a "heavy burden" -- to get it. At the Ninth Circuit, the government arguably did not meet that burden.
Via Joe Jervis, here's the filing:
Application to Vacate
The consensus seems to be that it's up to Kennedy now -- either he decides or he pulls in the full court.
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