The individuals and organizations challenging President Donald Trump's repeated efforts to stop transgender people from serving openly in the military have been busy at the Supreme Court this week, despite the holiday, filing more than a half-dozen briefs rebutting Justice Department arguments.
Earlier this week, the challengers urged the justices not to hear the government's appeals of the cases, in large part due to the unanimity of lower courts that the policy is unconstitutional. On Friday, the challengers filed a trio of briefs opposing a later government request that the justices allow the administration to enforce the new policy during the appeals process.
"For the past 2½ years (13 months before the President’s Tweets announcing
the Ban, and for 17 additional months since then), transgender service members have served their country openly. The government now — for the first time and without pointing to any real-world urgency — seeks this Court’s intervention," lawyers for challengers out of Washington state wrote in urging the justices to leave the injunctions in place. "The government’s Application should be denied."
The Trump administration's policy seeking to halt transgender military service has never been allowed to go into effect. Several judges — in California, DC, Maryland, and Washington state — have put both the initial and revised versions of the ban on hold, finding that the policies are likely unconstitutional. The first policy would have banned all transgender people from serving, while the government asserts that the second policy — barring most of those who take any steps to transitioning from serving — is different. No court has agreed.
The Obama administration began letting transgender people serve openly in June 2016. At the same time, the Pentagon began a review to decide what the process would entail for accepting transgender recruits. It settled on a policy that would allow transgender military recruits starting in mid-2017. Once Trump became president, however, Defense Secretary Jim Mattis delayed that start date to Jan. 1, 2018.
A year ago — and after being turned down by lower courts — the Trump administration declined to go to the justices to seek an order that would have allowed them to delay that date further, in light of the initial ban. The Justice Department also stopped seeking appeals of the preliminary injunctions, allowing those injunctions to remain in place and unchallenged while the administration decided its next step.
Once the revised ban was issued, the challenges continued, and the same results kept occurring: revised injunctions out of California, DC, and Washington state halting the revised policy's enforcement.
Over Thanksgiving weekend — with no appeals court having ruled on the constitutionality of the policy — the Justice Department asked the Supreme Court to hear appeals in those three challenges.
The request, called a petition for certiorari before judgment, is rarely granted by the court. Under Supreme Court rules, such review is only granted if a party can show "the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."
"There is no circuit split that might warrant this Court’s review; indeed, no court of appeals has ruled on any of the legal issues petitioners seek to bring to this
Court. And there is no division of authority on any of the legal underpinnings of the decision below," the challengers out of DC wrote. "There is thus no question on which this Court should grant certiorari at this time."
Meanwhile, on Dec. 13, the Justice Department went a step further, asking the Supreme Court to issue a stay of the injunctions — in other words, allow the Trump administration to enforce the ban — while the cases are pending below and/or before the justices.
Referencing the length of time the injunctions have been in place and the government's decision to halt appeals of those injunctions, the challengers in the Washington state case note, "The government’s decision to let these decisions stand — and to allow transgender men and women, including some respondents, to continue to serve in uniform — causes the sudden urgency to upset the status quo asserted in this Application to ring hollow."
The Supreme Court gives no timeline for when it will act on stay requests, but it is scheduled to consider the petitions to hear the cases at the justices' private conference on Jan. 11. It does not, however, need to decide whether to act on the cases at that conference. The court regularly re-lists petitions for multiple conferences before deciding whether to hear a case. However, the Jan. 11 conference is likely the last one under which a case could be granted and heard this term under a normal — as in, not expedited — schedule.