In July 2017, Donald Trump announced a new policy via Twitter: the president would no longer allow transgender Americans to serve in the military. He hadn’t given anyone at the Pentagon a heads-up about his new discriminatory policy – officials throughout the executive branch were blindsided – and no one at the White House could explain the necessity of the change.
Trump eventually defended the move by saying, “I think I’m doing a lot of people a favor by coming out and just saying it.” I still have no idea what that meant.
Not surprisingly, there were plenty of lawsuits challenging the president’s policy, and Trump’s position hasn’t fared well. The day after Thanksgiving, when much of the country’s attention was focused elsewhere, the administration turned to the Supreme Court for a rescue. BuzzFeed reported:
The Trump administration on Friday asked the Supreme Court to take up three cases challenging the administration’s repeated efforts to bar transgender people from serving in the military. The move is the latest unusual filing at the high court by an administration that appears eager to leapfrog over appeals courts that have previously sided with challengers to the administration’s policies. […]
The requests in all three cases come to the justices in an unusual posture. Normally, after an appeals court rules, the losing party chooses whether or not to ask the Supreme Court to review the matter. Here, the request comes in the form of petitions for certiorari before judgment, meaning that the department is asking the Supreme Court to review the case before appeals courts have had the chance to rule on the matter.
It’s a legal strategy predicated on the idea that there’s some kind of emergency: Trump needs to block transgender Americans from serving in the military right away, and there’s simply no time for appeals courts to consider the controversy.
This is, of course, bizarre.
A report commissioned by the Pentagon two years ago found that allowing transgender Americans to serve would have little to no impact on military cohesion or readiness – so the idea that this is an urgent legal dispute in need of the Supreme Court’s intervention is awfully difficult to take seriously.
It is, however, further evidence that Trump, in the wake of Brett Kavanaugh’s confirmation, expects the high court to follow the White House’s instructions. Whether the court’s five-member conservative majority is prepared to prove otherwise remains to be seen.
If the Supreme Court does take up the issue and the administration gets its way, the justices would hear an appeal this term, setting up a ruling for the summer of 2019.