Despite multiple cases relating to the ban that are still being heard in lower courts, Trump is asking to leapfrog the usual judicial process and go straight to SCOTUS.
Marilyn Drew Necci | November 26, 2018
When will the madness end? President Donald Trump and his administration have been pushing his attempt at banning transgender troops from the military for over a year now, since that infamous tweetstorm last July that we’ve all read a million times by now. Multiple court injunctions preventing the ban have not stopped the administration from pushing this agenda. Now it seems, despite all previous court rulings going against the administration, they’ve decided to take things even higher.
On Friday, November 23, Solicitor General Noel J. Francisco asked the Supreme Court to rule on the trans military ban in its current term. This would be a complete sidestep of the usual process by which the Supreme Court operates, especially since Francisco is asking the justices to consolidate the several different cases working their way through the court system now, and rule on all of them at once. But, like a second-grader dancing from foot to foot and waving their hand in the air frantically, he swears it’s an emergency.
“The decisions imposing those injunctions are wrong, and they warrant this Court’s immediate review,” Francisco wrote in his petition to the Court.
By “injunctions,” he refers to rulings by US District Court Judges Colleen Kollar-Kotelly, Marvin J. Garbis, and Marsha Pechman, all of which insisted that the administration stick to the Obama-era status quo, in which trans soldiers were able to openly enlist and serve in the military, and to receive coverage for trans-related health care as part of their military benefits.
In her ruling on the subject last October, Judge Kollar-Kotelly stated that the ban was “driven by a desire to express disapproval of transgender people generally,” and wrote, “There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effect on the military at all. In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects.”
The Trump administration attempted a modified version of the ban with a policy endorsed by Defense Secretary Jim Mattis earlier this year, claiming it was more fair to trans soldiers even as the revised policy still blocked the majority of trans soldiers from serving and forcing the rest to serve under their birth-assigned sex. Judge Marsha Pechman was one of many who saw right through this.
“The Court is not persuaded,” she wrote at the time. “Requiring transgender people to serve in their ‘biological sex’ does not constitute ‘open’ service in any meaningful way, and cannot reasonably be considered an ‘exception’ to the ban. Rather, it would force transgender service members to suppress the very characteristic that defines them as transgender in the first place.”
And so, here we are. The administration, having failed at every other level of the justice system, are appealing to the highest court in the land in hopes that that court will overrule all previous rulings and give them what they want.
As of now, the issue is being reviewed by multiple lower courts — the 9th Circuit Court of Appeals has heard a case involving the ban, but not yet issued a ruling; the Circuit Court of Appeals for Washington DC is supposed to hear another case next month. But Francisco is arguing that all of these other rulings need to be set aside, because the administration can’t wait one minute more.
“The military has been forced to maintain prior policy for nearly a year,” Francisco wrote. “And absent this court’s prompt intervention, it is unlikely that the military will be able to implement its new policy any time soon.”
This may seem completely out of the ordinary, but it’s become standard operating procedure for the Trump administration. In fact, it’s not the first time this MONTH they have done something like this. On November 5, the administration made the same request of the Supreme Court where their decision to repeal DACA is concerned. According to SCOTUSblog, this type of request is known as “cert before judgment,” and such requests are unusual and rarely granted. Apparently back in February, a previous request of this type related to DACA was refused by the Supreme Court.
So what’s going to happen with this one? Chances are it too will be refused — not so much because of how any Supreme Court justices feel about the trans military ban as because they want the administration to respect the judicial process. Getting the Trump administration to do so is a challenge — indeed, Chief Justice John Roberts got into a public dust-up over social media with the president less than a week ago. Roberts took exception to Trump questioning the legitimacy of what he called “Obama judges” on the court, a comment that is decidedly in character with the president’s tendency to call the nation’s court system illegitimate on twitter whenever a ruling doesn’t go his way.
How the Supreme Court will rule on this issue once it makes its way there (because make no mistake, it eventually will) is open to question, but chances for the Trump administration leapfrogging the usual judicial process on this one seem … less than good. Hopefully this issue will remain tied up in court for years to come — possibly long enough for us to vote this guy out of office in the meantime? Fingers crossed.