Reading the Tea Leaves from the Supreme Court
Is court poised to let Trump & Hegseth ban transgender service members?
Was the Supreme Court's decision yesterday dissolving a preliminary injunction on behalf of transgender service members a harbinger of an eventual opinion upholding Trump and Hegseth’s new categorical prohibition on such members?
There are plenty of ways to view the High Court's action as a mere procedural way-station that needn’t foretell an ultimate green light to ban transgender service. The Court's decision itself was Delphic; it did little more than remove the stay that the District Court had imposed and the Ninth Circuit had declined to disturb. Moreover, there are plenty of moving parts to the case and related cases elsewhere in the country.
The case is a good example of the foibles of the Court’s emergency docket, which the Administration is incessantly exploiting. (It has gone to the Court on an emergency basis more in a little over 100 days than the Obama and Biden Administrations did combined.) As the public, we’re left with a quick disposition of the motion and no explanation of the reasoning behind it.
The case will now proceed on the merits in the Ninth Circuit, and thereafter very likely proceed to the Supreme Court. In fact, the order expressly contemplates that route. Only then will we fully know where the Court stands on the issue.
But the signs are quite bad in my estimation.
The opinion by District Judge Settle completely discredits the Trump/Hegseth policy, for reasons that are hard to assail.
For starters, a key basis for the order was the President's finding that transgender identity conflicts with a soldier's commitment to an "honorable, truthful, and disciplined lifestyle.”
The Administration supplied absolutely no evidence in support of this outlandish and repugnant claim. Indeed, the new policy was issued with no new study, evaluation, or evidence—a fact the District Court cited in declining to review it with the deference the government requested.
And for their part, the plaintiffs, a group of seven transgender service members, supplied extensive evidence that the past four years of open transgender service under the policy of the Biden Administration had helped unit cohesion, good order, and discipline.
The District Court pulled no punches in sizing up the order for what it was – an expression of raw prejudice against transgender people that has zero connection to any legitimate military purpose. As the Court wrote, “common sense and binding authority defeat the government’s claim that it does not discriminate against transgender people.”
That was just the start. Even apart from this utter vacuum at the center of the policy, the District Court found multiple constitutional and legal violations, starting with a straightforward Fifth Amendment equal protection violation for discrimination on the basis of transgender status.
The Court went on to uphold the plaintiffs’ claims under the First Amendment, procedural due process, and equitable estoppel (based on reliance on the Biden policy when service members joined the Army).
More precisely, the Court found that each of these multiple claims demonstrated a serious question going to the merits, which is the Ninth Circuit’s standard for granting a preliminary injunction. The Court’s core holding of an equal protection violation was a faithful application of binding law in the Ninth Circuit, which has held expressly that “discrimination against transgender individuals constitutes sex-based discrimination for purposes of the equal protection clause, because such policies punish transgender persons for gender non-conformity, thereby relying on sex stereotypes.”
It was thus no great surprise when the Ninth Circuit declined the Administration’s emergency sky-is-falling demand to reverse the District Court.
That brings us to the Supreme Court's decision yesterday. The starting point of the analysis, as the District Court pointed out, has to be the Court’s decision in Bostock v. Clayton County, in which it held expressly that it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Justice Gorsuch wrote that opinion, which seems to commit the Court to the basic idea that discrimination against transgender people is of equal offense to the Constitution as discrimination on the basis of gender.
The Bostock case was decided under a statute – Title VII – rather than the Constitution, but the constitutional and statutory principles are kissing cousins. It seems very unlikely that the Court would want to announce some basic divide between statutory and constitutional law of discrimination on the basis of sex.
So why did the Court undo the hold? And why did the three progressive justices dissent?
It's possible that the Court was reacting to the District Court's entry of a nationwide injunction. That issue of individual district courts granting nationwide injunctions has vexed the Court and the executive branch for some time. In fact, the Court is poised to consider the issue in the birthright citizenship case next week.
But, in its ruling, the District Court recognized that courts must be very circumspect about granting nationwide injunctions and made an extensive case for why this was a rare instance in which it was necessary. It therefore doesn't make a lot of sense for the Court to use this case as the vehicle for disapprobation of national injunctions. And of course, the Court could have instructed the parties in the Ninth Circuit to address that issue in particular, but it didn't.
The far more likely distinction that grabbed the attention of the majority is the Trump Administration’s regular refrain—which they have sung in different cases over the past 100 days—that where the military is involved, the courts may not scrutinize the decision at all (or at most, under the least restrictive standard of rational basis).
The Administration made this pitch in the District Court, which made quick work of it because the Ninth Circuit had already rejected it. The Court also noted that deference wasn’t appropriate because the ban in the Executive Order was rushed into law with no thoughtful consideration or evaluation of impact on mission, i.e., with none of the features that would justify a court’s adopting a hands-off policy.
If a majority of the Court is sympathetic to this claim by the Administration, it would lead them to conclude, contrary to the District Court and the Ninth Circuit, that the plaintiffs are unlikely to eventually prevail on the merits—a pivotal factor for granting a stay.
The concrete concern that yesterday’s decision portends is an eventual ruling by the Supreme Court giving a green light to the rank vicious prejudice against transgender service members in the military on the dubious proposition that courts may not second-guess an administration's professed judgment on military matters such as morale and mission readiness.
It also would suggest that the military could exclude women, a practice that has long been settled as unconstitutional. Since the law seems clear that discrimination against transgender people is tantamount to discrimination on the basis of sex, the Court would have to twist its precedents into pretzels to permit one but not the other.
It would be a travesty – a green light for patent and transparent invidious discrimination. Moreover, the rationale could be applied by the same majority in other settings. Indeed, that's been the Administration’s essential pitch in the Alien Enemies Act cases – that courts can’t second-guess ostensible matters of “foreign policy.” The courts, including the Supreme Court, have thus far rejected it.
To circle back to where I began, it's a complicated case at an early procedural stage and multiple explanations are possible for the Supreme Court parachuting in as it did today.
Whatever explanation ultimately emerges, notice that this is a strong example of the kind of executive order by Trump where the victims automatically lose, even if they win. The plaintiffs’ claim is righteous and it should prevail. But after today, with the Supreme Court’s lifting of the stay, transgender service members are irrevocably harmed no matter what.
The Administration now has a green light to discharge them immediately, and you can be confident that's exactly what it will do. That means that members who signed up to serve their country will be booted, unfairly, at least until their case is decided. And a bitter lesson that has been brought home repeatedly in the last several years is the law moves far more slowly than events on the ground.
So even if the transgender service members’ claims are fully vindicated, they will have been out of the Army for a year or more and will have had to reconstruct a new life. For most of them, it won't make sense to return even if the courts order the Administration to allow it.
It's lousy. It's a rank injustice for dedicated service members and does nothing good for the armed services. And giving a blank check to an administration that is so base in its motivations and indifferent to the truth would be ominous for all of us.
Talk to you later.
Putting aside the merits of the case, why did this justify extraordinary “emergency” action by the Supreme Court, instead of allowing it to percolate through the lower courts with a full factual record? What is the “irreparable harm” the regime would suffer if the status quo is preserved pending the litigation? How does that compare with the harm the plaintiffs would suffer if the status quo isn’t preserved? This ruling on the “Shadow Docket,” without full briefing and oral argument, and with no written opinion, is effectively a ruling on the merits. It is creating new law, without any clarity as to what the new law is.
Dispicable, disgusting, shameful, embarrassing, low life, scumbag decision. They need to get rid of Trumpty Dumpty and drunk Hegseth.