He wouldn't leave the decision up to the courts, as Andy McCarthy pointed out again this morning at NRO:
Why is the president continuing to pretend that this is a judicial call, concerning which he is just a bystander? Apparently, the "delay" is to be accomplished by having the Justice Department do what it patently should have done two months ago: appeal the Second Circuit's disclosure ruling to the U.S. Supreme Court. That's all well and good, but to prevent the photos from being used by our enemies, Obama doesn't need to rely on that iffy route. He has it within his power, and has had it within his power at all times since January 20, to issue an executive order determining that the release of the photos would harm U.S. national security and contravene U.S. foreign-policy objectives.
The New York Times reports that other legal experts agree that an executive order is the easiest route to block the release of these photos. Well, at least that's the easiest legal option, perhaps not the easiest political one, as McCarthy writes:
Could it be that [Obama] wants to be able to vote "present"? Is it that, no matter how this comes out, he wants to be able to tell both the antiwar Left and Americans concerned about national security that he tried to look out for them but, alas, it was the court's call? I suspect that's the case, and, if I'm right, that's foolish on Obama's part. Presidents don't get to hide that way. This is his call. He should make it.