SubscribeThe granting of a writ does not necessarily mean that the Supreme Court disagrees with the decision of the lower court. Granting a writ of certiorari means merely that at least four of the Justices have determined that the circumstances described in the petition are sufficient to warrant review by the Court. Conversely, the Supreme Court's denial of a petition for a writ of certiorari is sometimes misunderstood to mean that the Supreme Court approves the decision of the lower court. Such a denial "imports no expression of opinion upon the merits of the case, as the bar has been told many times." Missouri v. Jenkins, 515 U.S. 70 (1995). In particular, a denial of a writ of certiorari means that no binding precedent is created by the denial itself, and that the lower court's decision is treated as mandatory authority only within the region of jurisdiction of that court.The "conservative activist" bit is unsupported by the article linked or by common sense, and smacks of GYOBFW.
May 2009
All Adults -- 69%
Conservatives -- 58%
"A new study by the Palm Center concludes that President Barack Obama has the power to stop discharges of gay military personnel by executive order and without the approval of Congress, should he so choose. The Center has released a 'Roadmap of Political, Legal, Regulatory, and Organizational Steps to Equal Treatment [PDF].' From the Palm Center's press release:Under the law “the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States” during a “period of national emergency.” The statute specifically defines a “national emergency” as a time when “members of a reserve component are serving involuntarily on active duty.”
The second and third bases of presidential authority are contained within the “don’t ask, don’t tell” legislation itself. The law grants to the Defense Department authority to determine the process by which discharges will be carried out, saying they will proceed “under regulations prescribed by the Secretary of Defense… in accordance with procedures set forth in such regulation." Finally, the law calls for the discharge of service members “if” a finding of homosexuality is made, but it does not require that such a finding ever be made. According to the study, these provisions mean that the Pentagon, not Congress, has the “authority to devise and implement the procedures under which those findings may be made.”
President-elect Barack Obama will not move for months, and perhaps not until 2010, to ask Congress to end the military's decades-old ban on open homosexuals in the ranks, two people who have advised the Obama transition team on this issue say.From a Washington Post online chat, about why the Supreme Court didn't take this particular case:
Repealing the ban was an Obama campaign promise. However, Mr. Obama first wants to confer with the Joint Chiefs of Staff and his new political appointees at the Pentagon to reach a consensus and then present legislation to Congress, the advisers said.
Here's the thing: the court accepts just about 1 percent of the cases presented to it. To those of us who cover the court, it was pretty clear it would not accept this one...Further, there was no disagreement yet among the lower courts. Such "circuit splits" are most often what the court looks for in deciding whether to accept a case. Now, there could be such a split before long; the 9th Circuit has decided to let such a challenge go forward. That would seem a more likely case for the court to take, should the policy not be changed in the meantime.
I was a line infantryman in the Army's Ranger regiment from 2000-04, earning a promotion to sergeant within three years. In that time, my platoon performed dozens of combat missions on the front lines. Our lives depended on complete mutual trust.
Several of my colleagues knew I was gay. We lived in the closest possible conditions. When there were showers, we showered together. When we were out overnight on the cold, bare mountains of Afghanistan, we slept huddled together for warmth. It should go without saying that there was nothing remotely sexual about these situations. We had uncomfortable experiences -- we were at war, after all -- but my buddies were never uncomfortable with me.
The reason I didn't come out to more of my comrades wasn't out of concern for morale. I was worried about losing my job.
But the election wasn't that close, and the Dixiecrats only got 39 electoral votes.
Your post about making DADT more "humane" reminded me of The Code Noir. Back in the day, slavery as practiced in French colonies like New Orleans was considered more humane than that throughout the rest of the South. Slaves were given certain rights and priveleges unheard of in other parts of the South. Some excerpts (per Wikipedia):
- slave husband and wife (and their prepubescent children) under the same master are not to be sold separately (art. 47)
- slave masters 20 years of age (25 years without parental permission) may free their slaves (art. 55)
- slaves who are declared to be sole legatees by their masters, or named as executors of their wills, or tutors of their children, shall be held and considered as freed slaves (art. 56)
- freed slaves are French subjects, even if born elsewhere (art. 57)
- freed slaves have the same rights as French colonial subjects (art. 59)
- masters must give food (quantities specified) and clothes to their slaves, even when they are sick or old (art. 22 - 27)
- (unclear) a master who falsely accuses a slave of a crime and has the slave put to death will be fined (art. 40)
- masters may chain and beat slaves but may not torture nor mutilate them (art. 42)
- masters who kill their slaves will be punished (art. 43)
In the context of slavery, one could certainly argue that some of the rights granted here were exceedingly generous. But that doesn't change the basic fact that they were still practicing slavery plain and simple. No one in their right mind nowadays would argue that this form of slavery is acceptable because it's more "humane." And while I don't mean to compare DADT to slavery, I really am dumbstruck that anyone could think that a more "humane" form of DADT would be similarly acceptable.
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posted by Lemurrhea at 5:11 AM on June 10 [2 favorites has favorites]