The Government's Abeyance Motion in the DADT Litigation

By Mike Dorf

Last week the Justice Dep't asked the 9th Circuit to hold in abeyance the appeal of an earlier district court ruling invalidating Don't-Ask-Don't-Tell (DADT) while the steps to implement the policy's repeal are taken.  The plaintiffs Log Cabin Republicans oppose the motion on the ground that so long as DADT remains in effect--which it does given the statutorily prescribed delay in implementation along with an existing stay of the district court order--service members suffer unconstitutional harm under the policy, and so the appeal should proceed as scheduled.  All things considered, I think the government probably has the better of the argument here, although the question of when it is appropriate to continue litigating over a repealed law or policy can be complicated.

The decisive consideration here, I think, is the fact that DADT almost certainly will be gone before the current litigation can realistically be expected to conclude.  This is not a case in which P sues D to enjoin some action A by D, then D stops doing A, or agrees to stop doing A, the litigation is dropped, and then D goes back to doing A again, leading to a new cycle.  Delay of a month or so really will permanently moot the case, whereas proceeding on the 9th Circuit's expedited schedule would likely drag on for many more months, potentially years if the Supreme Court were to get involved either in the substantive or remedial issues.

Moreover, although this is not a factor that bears directly on the abeyance motion, it's also not clear to me that the interests of current and future gay and lesbian service members would be served by pressing on with the litigation.  In light of the deference traditionally shown to the political branches with respect to military matters, it's quite possible that the eventual outcome of DADT litigation would be upholding the policy.  By contrast, repeal of DADT can fairly be understood as an exercise in "constitutional politics."  Just as non-renewal of the Sedition Act in 1801 can be read to mean that the People judged the Act unconstitutional, so repeal of DADT can be read as a similar popular judgment with respect to that law.  If DADT were now to be upheld by the courts, that ruling might eclipse the popular judgment, devaluing it from an exercise in constitutional politics to a mere policy judgment.

But leaving well enough alone in this way is not always the right course.  Consider the coram nobis petition brought by Fred Korematsu to overturn his conviction nearly forty years after it was affirmed by the Supreme Court in the infamous case that bears his name.  As Judge Patel noted in her opinion granting relief, she could not change the legal principles announced in the 1944 ruling, though she could void the underlying factual determinations based on the misrepresentations in the record.  The case was worth bringing, in my view, because it nonetheless did "overturn" the earlier Supreme Court ruling, at least symbolically.  And that's despite the fact that even in 1944, even on the basis of a falsified record, Justices Roberts, Murphy, and Jackson could see their way to the right result.  As Jackson explained, the Korematsu ruling (as opposed to the underlying exclusion and internment) was an affront to justice by the courts, and so it took a judicial act to atone.

Whether the district court decision in the coram nobis proceeding was sufficient atonement is an open question.  The Supreme Court has never formally overruled Korematsu--and the modern doctrine applying principles of equal protection against the federal government as well as the strict scrutiny test itself are arguably traceable to the opinion.  But it is also true that the actual holding of the case has not been invoked favorably in many years.  Citations of Korematsu, when they appear in the U.S. Reports, are negative citations, typically used by dissenters accusing their colleagues in the majority of something dreadful, in the same way that Dred Scott, Plessy, and Lochner are cited.

There is no comparably well-known martyr to DADT--although certainly many of the patriotic men and women who have been discharged under the policy would be candidates to bring actions to clear their names.   But I'd prefer to see them vindicated by the armed forces themselves--or better yet, by Congress: Many in the services have long regarded DADT as foolishness imposed on them by the political branches.  It is a small blessing that during the many years that gay and lesbian Americans were prevented from serving their country, the Supreme Court never took the opportunity to sanctify that injustice, and so it need not now make amends.