Despite President Obama’s continuing assurances about the pending repeal of the policy known as “Don’t Ask, Don’t Tell,” there are already murmurings the repeal rider to the Defense Authorization Act is effectively dead.  Now, the Supreme Court may have put another nail in the coffin of repeal, and it wasn’t their recent decision to uphold the appellate court’s stay, which allows DADT to be enforced while the trial continues.

It was Justice Kagan’s non-participation in the ruling: 

Justice Kagan took no part in the consideration or decision of this application.

Speculation is Kagan may have decided to recuse herself due to her participation as Solicitor General with the current administration’s ongoing DADT cases.

For those that like to assign ideological positions to the Supreme Court justices, Kagan’s potential recusal from a SCOTUS appeal could make repeal proponents’ jobs more difficult.  From the speculated 4-4 tie, with Kennedy as the deciding vote, the count now becomes 4-3 on the side of keeping the policy.  At best, Kennedy could cause a tie, which would mean the lower court’s ruling stands.

Based on those rough (and weak) statistics, the Plaintiff Log Cabin Republicans suing to repeal DADT must win at the 9th Circuit, where the case now stands.  If they don’t, on a “good” day they’d lose to a tie.  On a bad day, they’d lose outright.  If they win at the 9th Circuit, they’re back to relying on Kennedy to be the swing vote — they’d win with a tie, or lose with a minority.

Of course, the LCR may have another path if they win at the 9th Circuit.  If the Obama administration chooses not to appeal, the ruling would stand.