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).
18A625 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.18A627 TRUMP, PRESIDENT OF U.S., ET AL. V. STOCKMAN, AIDEN, 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 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.
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