A lower court had blocked the ban, which transgender servicemembers argue hamper military readiness

The US Supreme Court allowed President Donald Trump to enforce his ban on transgender troops serving in the military while challenges to the policy make their way through the courts.

A judge in Washington issued an injunction on the ban after several servicemembers sued.

In its emergency application to the court, the Trump administration argued that the lower court should show deference to the military’s decision-making.

The court’s three liberal justices objected to the stay, which arrived via an unsigned order on Tuesday.

  • litchraleeEnglish
    5·
    2 days ago

    Direct link (PDF) to the unsigned order issued by SCOTUS.

    For reference, on 27 March, the federal Western District Court for Washington state issued a Preliminary Injunction (PI) while the merits of the case continued to be litigated. The government then appealed the PI to the Ninth Circuit Court of Appeals, where a panel of three judges declined to stay (ie pause) the PI on 18 April, meaning the PI remained in effect. As of 25 April, the government then sought appeal to the full en-banc Ninth Circuit of judges, while also appealing directly to SCOTUS, both to stay the PI.

    Today, 6 May, SCOTUS granted the stay of the District Court’s PI, but conditioned it on whenever the Ninth Circuit issues its decision on whether to agree with or overrule the three-judge panel. But even further, the SCOTUS stay would remain in effect if the government then appeals that decision by the Ninth Circuit, pending SCOTUS’s own evaluation of an appeal to them.

    So logically, if the Ninth Circuit overrules its panel and grants the stay, then the government gets what they want by not being hamstrung by the PI, which makes the SCOTUS stay redundant. But if the Ninth Circuit agrees with its panel and declines to stay, then the government still remains unbound by the PI until SCOTUS gets around to handling the plaintiff’s application for appeal. At which point, SCOTUS can then decide to issue a new stay of the PI or let the stay expire, meaning the PI comes back into force.

    And all that still doesn’t get to the merits of the case, which is still with the District Court. The question to SCOTUS would be about whether a District Court in one part of the country can grant a PI that applies nationwide.

    Personal opinion: I think the answer is yes, but the power must be circumscribed somehow. Justice is not served if plaintiffs and defendants can judge-shop for a court that’ll grant whatever PI they ask for. When the constitutional rights of a class – specifically trans people – are at risk, and the rationale for singling out that class are suspect, I think granting nationwide preliminary relief serves justice, at least until the merits are fully litigated. After all, even the temporary, wrongful loss of constitutional rights is “irreparable”, under existing American jurisprudence.

    I also think SCOTUS jumped the gun, since judicial restraint would mean waiting for the Ninth Circuit to do their thing first, and then evaluate an appeal from that, if any is sought. How they actually did this kinda presupposes that an appeal to SCOTUS will surely follow, which is like putting the cart before the horse.