Image 01 Image 03

Supreme Court allows transgender military ban to go into effect

Supreme Court allows transgender military ban to go into effect

In 5-4 Orders, with the liberal Justices voting against, the Court issued stays of District Court preliminary injunctions against the Trump administration plan.

The Supreme Court issued Orders in two cases involving the Trump administration decision not to permit transgender persons to serve in the military.

The Orders stayed District Court preliminary injunctions that had prevented the ban from going into effect. The votes split along ideological lines, with the four liberal Justices voting to deny the stay (i.e., allow the injunctions to continue).


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.


The application for stay presented to Justice Kagan and by her referred to the Court is granted, and the District Court’s December 22, 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.

It is particularly important that SOTUS stayed District Court Orders pending appeals in the 9th Circuit. This mirrors what happened in the travel order cases, where SCOTUS did not wait for the more typical appeals process to conclude before issuing stays.

The Court ruled after a Petition for a Writ of Certiorari Before Judgment, a rarely used procedure that bypasses the federal appeals courts, in this case the notoriously liberal 9th Circuit. Rather than wait for SCOTUS to rule on that Petition, the government filed a motion for a stay:

The district court in this case preliminarily enjoined the military from implementing a policy that Secretary of Defense James Mattis announced earlier this year after an extensive review of military service by transgender individuals. In arriving at that new policy, Secretary Mattis and a panel of senior military leaders and other experts determined that the prior policy, adopted by Secretary Mattis’s predecessor, posed too great a risk to military effectiveness and lethality. As a result of the court’s nationwide preliminary injunction, however, the military has been forced to maintain that prior policy for nearly a year.

* * *

It is with great reluctance that we seek such emergency relief in this Court. Unfortunately this case is part of a growing trend in which federal district courts, at the behest of particular plaintiffs, have issued nationwide injunctions, typically on a preliminary basis, against major policy initiatives. Such injunctions previously were rare, but in recent years they have become routine. In less than two years, federal courts have issued 25 of them, blocking a wide range of significant policies involving national security, national defense, immigration, and domestic issues.

In cases involving these extraordinary nationwide injunctions, moreover, several courts have issued equally extraordinary discovery orders, compelling massive and intrusive discovery into Executive-Branch decision-making, including blanket abrogations of the deliberative-process privilege. In the face of these actions, we have had little choice but to seek relief in the courts of appeals; and when that has proven unavailing, to do so in this Court. Absent such relief, the Executive will continue to be denied the ability to implement significant policy measures, subject to appropriate checks by an independent Judiciary in resolving individual cases and controversies.

The cases now proceed on a normal appeals process, but with the injunctions stayed.

The Supreme Court’s orders seem to be a reflection that the conservative Justice recognize a dilemma unique to the Trump era — District Courts effectively running policy decisions reserved to the Executive Branch based on aggressive constitutional and statutory interpretations bathed in politics.


Donations tax deductible
to the full extent allowed by law.



So she’s still participating, even if it’s only a little?

Does Justice Ginsburg even have the mental capacity at this point to vote on the Writ?

    mailman in reply to Dave. | January 22, 2019 at 10:50 am

    Given she is not able to be physically present does this not mean she should be recusing herself UNTIL she can attend in person?

    Its easy to read a transcript BUT she isnt really doing her job is she? There is also the question, as you say Dave, about her mental ability to actually comprehend what is going no. IF she isnt there in person how can she assess the veracity of the oral arguments as they are being made in person?

      Here’s how she casts her votes. It’s the method she’s always used. The beak is positioned over the “Liberal” key,

      Milhouse in reply to mailman. | January 22, 2019 at 12:49 pm

      Why does she need to “assess the veracity” of oral arguments? What “veracity” could arguments have or lack? She is not a finder of fact; there is no testimony for her to assess with a juror’s eye; so why is her presence necessary?

        Her presence is necessary because she is a sitting member of the Court and oral arguments are part of the decision making process. If she is unable to participate in this process she should resign or be removed.

          Milhouse in reply to AJR. | January 23, 2019 at 4:41 am

          There is no such rule and never has been. Oral arguments are a very minor part of the process, and she can read the transcripts and listen to the recording. Her role is in no way analogous to that of jurors, who must be able to see the witnesses live so they can form an opinion of their veracity. There are no witnesses in appeals, so veracity simply isn’t an issue.

          AJR in reply to AJR. | January 23, 2019 at 11:19 am

          Nor a valid characterization of my comment. She is an appellate judge on the court of last resort in this country. If she can’t be present and do her job, she should resign or be removed as unfit.

          AJR in reply to AJR. | January 23, 2019 at 11:52 am

          Oh and as to a “very minor part of the process,” i guess no opinions were eve changed during oral arguments. I think the appellate bar nationwide could benefit from your insight and direct their energies into other more production work.

          AJR in reply to AJR. | January 23, 2019 at 12:19 pm

          And as for a rule (and hopefully I can write this without an inordinate number of typos), how about Art, III, sec. 1 of the Constitution (“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…”)? Inability to participate fully in the decision making process on a prolonged basis could conceivably be deemed not good behavior. Admittedly not really enforced but maybe about time it should be.

        userpen in reply to Milhouse. | January 22, 2019 at 5:09 pm

        Must all justices attend? Must any attend? I don’t know, but if the court is going to continue to have oral arguments and some members can not attend for a protracted period of time due to a very serious, perhaps even terminal illness, yet still be allowed to vote, there needs to be some accountability. Perhaps we could be allowed to see a video (or an artist’s rendering) showing that the excused justice is still able to function and not in a coma or on life support.

          Milhouse in reply to userpen. | January 23, 2019 at 4:42 am

          No, none of the justices need attend. There don’t even have to be any oral arguments.

          userpen in reply to userpen. | January 23, 2019 at 10:20 am

          What does it mean to say “the supreme court is in session” if no one is there? Do the justices ever have to physically come the supreme court to conduct business? Do they need see each other? Talk to each other? Can they vote on cases while on vacation? If one of them is very very sick, perhaps terminal, do we have a right to know if he or she is of sound mind and able to make decisions and not in a coma or on life support?

        I never said her role was that of a juror. I said her role was that of reviewing judge. As a judge in the court of last resort, to be fair to all litigants making a case, she should be present at oral arguments to hear counsel elaborate on the issues and, if interested, ask questions herself. Opinions can be changed during oral arguments. Transforming her job to a remote position is not consistent with the act of a responsible appellate judge. She should be resign or be removed as unfit for office.

    pwaldoch in reply to Dave. | January 22, 2019 at 11:09 am

    Did Justice Ginsburg ever have the mental capacity to be on the SCOTUS? For that matter any of the 4 liberal justices, and maybe even Roberts too.

    NGAREADER in reply to Dave. | January 22, 2019 at 11:53 am

    Her job, as she sees it, is to vote against anything Trump supports.

      userpen in reply to NGAREADER. | January 23, 2019 at 12:03 pm

      I believe you mean, her job, “as she used to see it.” Unfortunately, until a death certificate is issued, it will be business as usual at the SCOTUS with all nine justices “deciding cases.”

After the rant that there are no “liberal” or originalists … just justices on SCOTUS, Quietly Roberts must KNOW there is. Her “epic” trial by fire through the gauntlet of illnesses polishes her credentials. I wouldn’t be surprised if she designates her replacement when the time comes. She is the stuff of legend and of the Academy Awards. Why not AOC for court? In the progressive world any and everything is possible.

buckeyeminuteman | January 22, 2019 at 11:29 am

A couple of years ago, all you ever heard about were gays. Marriage, military service, adoption, etc. As soon as the SCOTUS implemented nationwide gay marriage via judicial fiat, the conversation immediately turned to transgender. Accepting gays wasn’t enough, now we all need to go one step further. Wasn’t even a concept or term used in public until 2015, I’m pretty sure. Now, if you’re not on the “transgender train”, you’re a despicable human being.

Can we get rid of the ads hiding under the links to the stories, titles, and comments on this website? I am about ready to write IONOS and tell them to take their website services and put them where the sun doesn’t shine. They are as bad as any other kind of pop-up.

As for how Ginsburg can telecommute, she can do it the same way any other judge could do it for the last 30 years or so. The judges all read the briefs before the hearings. The hearings are recorded. The judges all know what line of questioning interests them in advance of the hearings. They also know how to use telephones and email. Any other judge would presumably ask questions on behalf of another judge, if requested.

Surprises at hearings are rare.

Reading does not take up a hell of a lot of energy. It can also be done in bits and pieces, so that a sick person can manage. The same is true of recordings of hearings. There are always the pause and rewind options.

In my family, I’ve seen those who cling to life down to the shreds, and those who hold it lightly. I can imagine that RBG might be worried both by the slanders by the national news of all things conservative, as well as the mess that has been made of her own good work by the people who claim to revere her. I think there is comfort to be offered in the observation that the ground has shifted, so that those who carry forward the essential part of her ideas will be found among her alleged opposition.

Transgender is not a social issue – but a mental illness issue (disquised as a biological issue in the name of social justice.

since it is a mental issue, I seriously doubt the any transgender person is even remotely mentally capable of functioning in the military – Mr. chelsea manning being a prime example.

Having 4 justices treating a mental illness as not being a disqualifer a highly stressfull occupation and treating it only as a discrimination issue – ignoring facts, science and reality, is not comforting.

    Shadow5 in reply to Joe-dallas. | January 22, 2019 at 12:23 pm

    Not only the mental illness of body dismorphic disorder but componded by the brains inability to function normally while dealing with the hormone cocktail necessary to maintain the self-deception. But we are not talking science here, we are talking liberal activist.

    Close The Fed in reply to Joe-dallas. | January 22, 2019 at 12:28 pm

    I have experience with men who suffer from this. Although it is a “mental illness,” I find it to be more of a mental adaption to abuse, neglect, et cetera that typically happened at a young age. And since the circumstances of neglect and abuse vary enormously, these adaptations vary enormously.

    In my experience, these men have “multiple personalities,” which the psychiatric community has changed the term to “D.I.D.” or “dissociative identity disorder.” I prefer multiple personalities, because it immediately helps me understand how I should relate to the person suffering it.

    Basically, they compartmentalize their memories so that each personality has different life experiences, and thus different goals, and different, well, personalities. If you know which personality you are speaking with, and you consistently relate to them as that person, you will have a much smoother go of dealing with them.

    The “better adjusted” ones with the affliction, can slide between “alters” very easily, and may do so a few times a day, or every two or three weeks. Everyone is different.

    The militant ones are rare. Most of them are people you think are a little off, but they seem to take care of business. They don’t want you to know!!! They’re ashamed!!! They feel guilty!!! They were kids, and they believe their abusers, that they caused the abuse.

    If you want resources to help:
    A good primer for this if you know someone with alters and you are at your wit’s end to understand them is:
    “United We Stand: A book for people with multiple personalities.” by Eliana Gil.
    “Beyond Betrayal: Taking charge of your life after boyhood sexual abuse” by Richard B. Gartner.

    No, they don’t belong in the military, and I did serve in the late 70s, in peacetime.

      Close The Fed in reply to Close The Fed. | January 22, 2019 at 12:44 pm

      I want to say a little more about this, because so few people are familiar with multiple personalities.

      In this affliction, each separate personality may not even know about the others. They have different relationships with each other. They may be good, they may be hostile to each other. If one wants to go out and have a “good time,” another alter may oppose that because it isn’t safe. One may be very young and female and want to play with dolls, and another may be a teenage boy and disgusted by that and be hostile to the younger female alter.

      How the different personalities work together is sometimes called a “system.” I think I’ve also seen it called a “family.”

      Some alternate personalities will be of the age of whenever abuse/neglect occurred. They’ll be stuck at that age. If that 8 year old person shows up for a job that requires firmness and authority, you will have a problem on your hands. He will try to hide it, he will try to overcome his inherent weakness, but it will be there.

      Criticisms of therapy to help “homosexuals” be “heterosexual” are ill-founded and inhumane. These people are suffering mental and physical anguish. They need help and therapy can help “fuse” the personalities, reducing the number from 3 or 4, or 8 or 10, down to maybe 1, or down to two or three, in the last case. That is a big help. It also helps reduce their accident-proneness, their body memories of trauma, and a hundred other problems they have.

      One purpose of the compartmentalization of memory, is so that a person can function. If he is a personality that does not remember abuse, it is easier to function. Some people who have suffered abuse, will keep their schedules CRAZY full, so they have no time to think. Camille Paglia once wondered why Hillary Clinton likes to stay so busy…. Camille Paglia has a clue.

      There’s so many astonishing effects, obviously I can’t put them all here.

    Paul In Sweden in reply to Joe-dallas. | January 22, 2019 at 1:21 pm

    The idea held by the leftists that a pilot or other service member should be allowed to fly loaded with hormones and a delusional perception of themselves boggles the mind.

Not one of those judges has served in the armed forces. Not one.

    amwick in reply to Arminius. | January 22, 2019 at 12:53 pm

    Great point, TY. I read that not one in the last 80 or so years has had military experience.

    An old article, sorry.

      Arminius in reply to amwick. | January 22, 2019 at 3:10 pm

      Neil deGrasse Tyson, When he isn’t raping women, expounds upon the concept of the multiverse.

      Because of course there can not be a God. I hold the opposite view, there must be a God. So creation must be due to a creator and not due to something else.

      But NDT and I differ. Hence the multiverse. Now, believing in the multiverse is much less rational than believing in God. Occam’s Razor and all

      But I am willing to grant everything Neil deGrasse Tyson wants. If there is a multiverse, Elvis still lives. And he spent four years in the Army. I say we call him back and appoint him to the Supreme Court.

Yes it matters.

Most appellate courts consider oral arguments totally optional, and many rarely grant them these days.

That said, this was a good ruling.

Comanche Voter | January 22, 2019 at 11:54 am

At some point–and I hope it is sooner rather than later, the Supreme Court is going to have to take the federal District Court judges in hand–and maybe to the woodshed. The practice of issuing nationwide injunctions by a single District Court judge is arrogance to the third power. Particularly where the decision is politically driven.

    Hmm, did you say so when the judge in Texas enjoined the 0bama administration from implementing DAPA?

      Juba Doobai! in reply to Milhouse. | January 22, 2019 at 1:19 pm

      DAPA was always illegal inasmuch as Obama had no legislative authority under the Constitution.

      I think the writer was referring to the expansive use of national injunctions, not that, in particular egregious abuses of executive authority like the Texas case, such injunctions should never issuel

casualobserver | January 22, 2019 at 12:11 pm

It’s a charade at this point. People who claim to disbelieve there is a full court press from the left to execute lawfare when they cannot get power via elections are no longer serious. The evidence is overwhelming.

How is this even a Supreme Court case, it has nothing to do with the constitution, there is no ‘right’ to serve in the military. The only consideration when it comes to national defense is readiness, the courts can shove all the ‘injunctions’ up their collective asses.

Transgender lunatics finally seems to be the point at which society is willing to draw the line and say NO MORE.

A huge amount of people were against gay marriage (I don’t care personally – but acknowledge MOST people felt differently) – so much that a whole bunch of states passed CONSTITUTIONAL AMENDMENTS against it (which takes HUGE majorities in most states). Liberals didn’t care and rammed it through anyway.

But at the end of the day people weren’t really willing to fight over it.

Why? Because while they found the idea of it repugnant, it didn’t really affect them. They could simply not interact with them, and apart from a few sue-happy morons that generally lose in court, 99% of the common people are not affected.

Transgenderism is completely different. Because at its core, it is accompanied by a DEMAND that YOU publicly acknowledge their lunacy. At its core is their DEMAND that you treat them as whatever sex they feel like being that day. It is a DEMAND that they be allowed to insert themselves into normally private areas like locker rooms and FORCE you to shut your mouth.

And that’s why common people are having none of it, and why Hollywood and the Left is growing increasingly shrill about it.

They will FORCE you to say there are five lights.

    elle in reply to Olinser. | January 23, 2019 at 1:33 am

    It is a good point. The gay marriage issue was really semantics about the meaning of the word “marriage”. Nobody much cared about who or what you wanted to form a legal union with.

    But the transgenders took it to a whole new level, insisting that we were horrible/awful people if we complained about “women” with beards lurking in ladies bathrooms and peeking at little girls through the stalls.

“…But at the end of the day people weren’t really willing to fight over it.”

I am willing. And I am scared. If you aren’t scared you aren’t doing things right.

I never got a hop in a Tomcat. But I logged a lot of hours in SH-3 Sea Kings. As a passenger.

If you fly in Sea kings and are not afraid, well…

Any man who tells you he is not afraid is either a Ghurka a liar.

I bet they voted on this before Ginsberg went out sick. My understanding is it takes the supreme court a long time to write up there opinions and release them