Anthony Kennedy

In a move that did not catch anyone by surprise, the U.S. Supreme Court on Friday denied a request from attorneys for Log Cabin Republicans to vacate an order that enabled the military to continue enforcing Don’t Ask, Don’t Tell.

The 9th Circuit U.S. Court of Appeals had, on November 1, granted the U.S. Department of Justice a stay of a lower court’s injunction against enforcement of DADT. Log Cabin filed a petition, asking the high court to vacate the stay, which had been in place since October 20—first as a temporary stay, then as a permanent stay until the federal appeals court can address DOJ’s appeal of a federal judge’s ruling that DADT is unconstitutional.

The two-sentence order issued Friday indicated that Justice Anthony Kennedy, who is responsible for disposition of such requests from the 9th Circuit, referred Log Cabin’s request to the entire bench. The order did not indicate a dissent by any of the justices but did indicate that the court’s newest member—Justice Elena Kagan—recused herself from the decision.

Log Cabin attorney Dan Wood said he would now ask the 9th Circuit to expedite consideration of the government’s appeal. A 9th Circuit panel is scheduled to hear arguments in the case in February and a decision is not likely until April or later. DADT will remain in effect during that time, absent some action by Congress to repeal the law sooner.

The Senate is expected to take up repeal language with the defense authorization bill, perhaps as early as next Wednesday (on a motion to break the current Republican-led filibuster). But even if the Senate does approve the repeal measure, it still has several more potentially difficult hurdles to clear—a House-Senate conference committee vote, votes again in the House and Senate on the committee’s final version of the legislation, and—assuming President Obama would sign it—a certification process and 60-day waiting period that could put the measure back before Congress yet again.

Meanwhile, Log Cabin Republicans has begun goading the White House over the lawsuit and repeal measure, criticizing DOJ for opposing its request to end the stay and claiming that the Obama administration has not dispatched anyone to press for passage in the Senate.

“President Obama remains far from the front lines of the fight for legislative repeal while commanding his lawyers to zealously defend ‘Don’t Ask, Don’t Tell’ in court,” said Log Cabin Executive Director Clarke Cooper. Cooper said Log Cabin this week “conducted meetings with numerous Republican senators potentially in favor of repeal, all of whom are waiting for the President’s call. The White House has been missing in action on Capitol Hill, undermining efforts to repeal [DADT] in the final session of this Congress, potentially leaving the judiciary as the only solution for our brave men and women in uniform.”

Notably, Justice Kagan’s recusal from the order at this point hints that she would likely recuse herself, too, from the case once it reaches the high court on the merits. Her recusal would set up the possibility of a tie vote in the high court, thus limiting the 9th Circuit’s decision—whatever it is—to the 9th Circuit.