The Trump administration asked the Supreme Court to issue an unusually quick ruling on the Pentagon’s policy of restricting military service by transgender people. It’s the fourth time in recent months the administration has sought to bypass lower courts that have blocked some of its more controversial proposals and push the high court, with a conservative majority, to weigh in quickly on a divisive issue.
Earlier this month, the administration asked the high court to fast-track cases on the president’s decision to end the Deferred Action for Childhood Arrivals program, which shields young immigrants from deportation. Administration officials also recently asked the high court to intervene to stop a trial in a climate change lawsuit and in a lawsuit over the administration’s decision to add a question on citizenship to the 2020 census.
The 9th U.S. Circuit Court of Appeals, a frequent target of criticism by President Donald Trump, is involved in three of the cases. Trump’s recent salvo against the “Obama judge” who ruled against his asylum policy — not one of the issues currently before the Supreme Court — prompted Chief Justice John Roberts to fire back at the president for the first time for feeding perceptions of a biased judiciary.
Joshua Matz, publisher of the liberal Take Care blog, said the timing of the administration’s effort to get the Supreme Court involved in the issues at an early stage could hardly be worse for Roberts and other justices who have sought to dispel perceptions that the court is merely a political institution, especially since the confirmation of Justice Brett Kavanaugh. At an especially sensitive moment for the Supreme Court, the Trump administration is “forcing it into a minefield that many justices would almost surely prefer to avoid,” Matz said.
The Supreme Court almost always waits to get involved in a case until both a trial and appeals court have ruled in it. Often, the justices wait until courts in different areas of the country have weighed in and come to different conclusions about the same legal question.
So it’s rare for the justices to intervene early as the Trump administration has been pressing them to do. One famous past example is when the Nixon administration went to court to try to prohibit the publication of the Pentagon Papers, the secret history of U.S. involvement in the Vietnam War.
In the immigration case, the administration told the high court that it should step in and decide the fate of DACA ahead of an appeals court’s ruling because the policy otherwise could be in place until the middle of 2020 before the justices might otherwise rule. The appeals court has since ruled, but the administration’s request that the court hear the case stands.
In the military case, the administration argued that the Supreme Court should step in before an appeals court rules because the case “involves an issue of imperative public importance: the authority of the U.S. military to determine who may serve in the Nation’s armed forces.”
In a statement, Peter Renn, an attorney for Lambda Legal, which brought one of the challenges to the transgender military policy, called the Trump administration’s action Friday a “highly unusual step” that is “wildly premature and inappropriate.”
The Pentagon initially lifted its ban on transgender troops serving openly in the military in 2016, under President Barack Obama’s administration. But the Trump administration revisited that policy, with Trump ultimately issuing an order banning most transgender troops from serving in the military except under limited circumstances. Several lawsuits were filed over the administration’s policy change, with lower courts all ruling against the Trump administration.
Still ongoing in lower courts are the census and climate change cases. The Supreme Court for now has refused to block the climate change trial. In the census question case, the court has agreed to decide what kind of evidence a trial judge can consider and indefinitely put off questioning of Commerce Secretary Wilbur Ross. But it rejected an administration request to delay the trial and allowed other depositions to take place.
The court will hear arguments in the census question case in February. It’s unclear when it will act on the administration’s other requests.
Justice Department Fast-Tracks Military Transgender Cases to Supreme Court
WASHINGTON, DC – U.S. Solicitor General Noel Francisco petitioned the U.S. Supreme Court on Friday to bypass two federal appeals courts and render a final decision on President Donald Trump’s military transgender policy by summer 2019.
The Department of Justice (DOJ) has been litigating several cases regarding that policy since 2017. Transgender individuals had never been able to serve in the U.S. military, but Barack Obama attempted to change that policy shortly during his final term, and President Trump inherited that attempted policy change shortly after taking office.
“To assemble a military of qualified, effective, and able-bodied persons, the Department of Defense [DOD] has traditionally set demanding standards for military service,” the “cert petitions” explain. “Given the unique mental and emotional stresses of military service, a history of most mental health conditions and disorders is automatically disqualifying.”
The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) has long categorized transsexuality as such a condition, first calling it “transsexualism,” then “gender identity disorder,” and most recently, “gender dysphoria.” But with the 2013 change to the latest label, the association shifted its stance to say that it no longer considered nonacceptance of a person’s biological sex to be a disorder, unless accompanied by certain symptoms.
The Obama administration decided to allow transgender individuals to serve in uniform, sparking a debate among military policy experts, though the new policy stance was not set to take effect until July 2017, six months after the end of Obama’s tenure in office.
On July 26, 2017, President Trump settled the debate by announcing that the U.S. military would not include transgender individuals. DOD subsequently formulated a policy allowing some transgender individuals but not others. On December 2017, a federal district judge issued a nationwide injunction blocking DOD’s policy across the country.
Pursuant to later, more detailed instructions from the commander-in-chief, Defense Secretary James Mattis conducted a study, modifying the original assessment and recommending that some transgender individuals can serve, but those with a history of gender dysphoria that results in expensive gender-reassignment surgery and others therapies that render them unable to serve for significant lengths of time should not be able to serve in uniform. The specific military need is that those serving in uniform must be “free of medical conditions or physical defects that may require excessive time lost from duty.”
In March 2018, President Trump adopted that recommended policy. On April 13, 2018, a federal judge in the U.S. District Court for the Western District of Washington [State] refused to lift the preliminary injunction blocking the first version of the policy. The District of Columbia federal court likewise refused to lift its identical injunction on August 6 and the Central District of California did the same on September 18.
DOJ appealed all three of those decisions. On November 23, Francisco took the extraordinarily rare step of asking the Supreme Court to take each of those cases now, rather than wait for perhaps another year for the U.S. Courts of Appeals for the Ninth Circuit and D.C. Circuit to issue decisions. Those two appellate courts are currently two of the most liberal courts in the nation, and widely expected to affirm the lower courts’ blocking of the policy.
“This Court has long accorded a healthy deference to legislative and executive judgments in the area of military affairs,” explains the first petition. It adds:
That deference reflects the recognition not only that courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have, but also that military authorities have been charged by the Executive and Legislative Branches with carrying out the Nation’s military policy. The Mattis policy would thus warrant deferential review even if an analogous policy in the civilian context would call for closer scrutiny.
Although the Supreme Court almost always waits for a federal appeals court to render a final decision on a case before the justices will review it, federal law and Supreme Court rule 11 give the justices jurisdiction over a case at any point after it is first docketed with the appellate court. The Trump administration has asked for the High Court to exercise that rule a couple times, most recently in the legal challenges to the DACA amnesty program for illegal aliens.
This upsurge in petitions for certiorari before final judgment is attributed to the rapid increase of district judges with liberal judicial philosophies issuing nationwide injunctions over the past two years, essentially blocking entire federal policies. Historically, district courts would render relief only for the parties in the case before them, or at minimum would often stay broad decisions while the government takes the case up on appeal.
The cases are Trump v. Karnoski, Trump v. Jane Doe 2, and Trump v. Stockman, and have not yet been assigned docket numbers in the Supreme Court of the United States.
