Updated at 12:47 p.m.
A divided U.S. Supreme Court on Tuesday allowed the Trump administration’s ban on transgender military service to take effect temporarily, but rejected the administration’s request to hurry up and review the legality of the policy.
In three pending cases, U.S. Solicitor General Noel Francisco had urged the justices not to wait for federal appeals courts to rule on the injunctions against the ban, which is the usual path taken for district court rulings to reach the high court.
The justices’ order said the injunctions will be stayed until the high court receives and acts on a petition for review. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan voted to deny the government’s requests to block the injunctions and skip over the appellate courts.
“The decisions imposing those injunctions are wrong, and they warrant this Court’s immediate review,” Francisco insisted in his petition for “certiorari before judgment” in United States v. Karnoski. “The government respectfully submits that the Court should grant the petitions for writs of certiorari before judgment, consolidate the cases for decision, and consider this important dispute this Term.”
Reacting to the court’s decisions Tuesday, Justice Department spokesperson Kerri Kupec issue this statement:
“We are pleased the Supreme Court granted stays in these cases, clearing the way for the policy to go into effect while litigation continues. The Department of Defense has the authority to create and implement personnel policies it has determined are necessary to best defend our nation. Due to lower courts issuing nationwide injunctions, our military had been forced to maintain a prior policy that poses a risk to military effectiveness and lethality for over a year. We will continue to defend in the courts the authority and ability of the Pentagon to ensure the safety and security of the American people.”
Advocates for LGBTQ rights criticized the court’s stays, but drew some comfort from the court’s decision not to let the Trump administration expedite consideration of its objections to the injunctions.
“In declining to hear these cases, the Supreme Court saw through the administration’s contrived efforts to gin up a national crisis.” said GLAD Transgender Rights Project Director Jennifer Levi. “Unfortunately, the court’s stay of the lower courts’ preliminary orders means that courageous transgender service members will face discharges while challenges to the ban go forward. The Trump administration’s cruel obsession with ridding our military of dedicated and capable service members because they happen to be transgender defies reason and cannot survive legal review.”
The trio of cases has drawn the interest of Big Law lawyers who have written briefs in support of transgender rights. Stephen Patton of Kirkland & Ellis, Scott Ballenger of Latham & Watkins Paul R.Q. Wolfson, co-chairman of appellate and Supreme Court litigation at Wilmer Cutler Pickering Hale and Dorr have taken the lead in the briefing.
The cases before the court are: Trump v. Karnoski, Trump v. Doe, and Trump v. Stockman. Patton wrote in his response brief in Karnoski, “The government now—for the first time and without pointing to any real-world urgency—seeks this Court’s intervention, requesting that this Court remove the cases from the process of orderly appellate review through an extraordinary writ of certiorari before judgment.”
When Francisco urged expedited review late last year, Shannon Minter, legal director of the National Center for Lesbian Rights, said, “The Trump administration has demonstrated no urgency that would justify leapfrogging the normal appellate process, and the military’s own account shows no problems that need to be addressed. By the military’s own account, inclusion of transgender service members makes our military stronger.”
Marcia Coyle contributed reporting from Washington. This story was updated with additional comment about the Supreme Court’s order Tuesday.