Eeeeeeenteresting. The Supreme Court ordered on a 5-4 vote the lifting of a temporary injunction against the Pentagon that had prevented the Department of Defense to block transgendered individuals from service in the armed forces. The move does not necessarily address the merits of the lawsuit against the policy, but certainly hints in a particular direction:
BREAKING: The US Supreme Court allows President Trump's transgender military ban to go into effect, dealing a blow to LGBT activists who call the ban cruel and irrational https://t.co/QMsI6Tyjaz pic.twitter.com/P3ZtUNC1GS
— CNN (@CNN) January 22, 2019
The policy, first announced by the President in July 2017 via Twitter, and later officially released by then-Secretary of Defense James Mattis, blocks individuals who have been diagnosed with a condition known as gender dysphoria from serving with limited exceptions. It also specifies that individuals without the condition can serve, but only if they do so according to the sex they were assigned at birth.
The CNN panel notes that this is no academic exercise. Thanks to the policies of the preceding administration, the US armed forces have a number of people who fall into this classification, whether they’re called “transgender” or considered people with gender dysphoria (or both). The injunction kept those people on the job, but the lifting of the injunction likely means that the Pentagon will forcibly retire them from service while the lawsuit proceeds in district court.
That’s why the district court applied the injunction in the first place, and why the Ninth Circuit rejected the administration’s appeal against it. The appellate court wanted to keep the status quo in place:
The district court’s December 11, 2017 preliminary injunction preserves the status quo, allowing transgender service members to serve in the military in their preferred gender and receive transition-related care. Appellants ask this court to stay the preliminary injunction, pending the outcome of this appeal, in order to implement a new policy. Accordingly, a stay of the preliminary injunction would upend, rather than preserve, the status quo.
In order to win the injunction, the plaintiffs had to demonstrate both a showing of immediate and irreparable harm and a likelihood of prevailing on the merits of their case. The harm is obvious from the clear and intended impact, which means that the 5-4 decision by the Supreme Court would indicate that the court feels that there is more likelihood that the plaintiffs will lose their lawsuit against the policy — eventually. That 5-4 split goes precisely how one would predict, too:
Justices Ruther Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan would have denied the request for a stay.
It’s not a decision decision in the case, but it’s still a telling outcome. If the five conservative justices thought the plaintiffs had a decent chance to make their case, it’s unlikely that all five would have voted to lift the injunction. It might be years before this lawsuit comes back to the Supreme Court, which means that the policy would remain in place all that time and the plaintiffs will suffer the actual harm they claim (whether or not the policy itself is proper, the harm still takes place). Five of the nine ruled that they don’t consider the likelihood of prevailing to be worth the cost of thwarting a military policy.
That doesn’t mean that Trump v Karnoski is certain to be doomed. But that’s the way one would bet after this ruling.
Update: Here’s the order itself, which led off the list of actions taken in the January 18th conference:
TRUMP, PRESIDENT OF U.S., ET AL. V. KARNOSKI, RYAN, ET AL. The application for stay presented to Justice Kagan and by her referred to the Court is granted, and the District Court’s December 11, 2017 order granting a preliminary injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.
Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.
This sounds marginally better for the plaintiffs, at least on timing. They won’t have to wait for the case to be fully made before seeking a new injunction. However, that may be a distinction without a difference. It takes four votes to grant cert, and the government just got five to “stay” the injunction and allow the policy to go forth. Any injunctive relief is unavailable until the government comes back to the Supreme Court at least, and if cert is granted, until after the court files its final decision. That’s a long time to wait.
Update: It’s worth pointing out that this decision allows the Pentagon to reimpose the ban on transgenders serving in the US military, but doesn’t require it. The Trump administration could decide to hold off and maintain the status quo. Gabriel Malor argues that the status quo hasn’t created any of the issues that drove the change in policy in the first place:
A bit more on this. We've had more than two and a half years of open trans service in the military without the disruptions and harm to military readiness that opponents claimed would occur.
Every day that went by demonstrated how unnecessary a trans ban was.
— Friendly Gabriel Malor (@gabrielmalor) January 22, 2019