Without explanation, the Supreme Court by a 5-4 split lifted two of three stays of Trump’s ban on trangender people serving in any capacity in the military.
The Supreme Court on Tuesday took a dramatic step toward reviving President Donald Trump’s ban on transgender troops.
Previously, lower courts had placed injunctions on the transgender ban, stopping the Trump administration from enforcing it.
On Tuesday, the Supreme Court put a hold on some of those injunctions. But because one lower court injunction was not part of the cases the Supreme Court put a hold on, the ban can’t be enforced just yet. It is likely, though, that soon the remaining injunction will be put on hold as well.
The military sought no such ban. Apparently, Trump didn’t bother to ask or tell them before impulsively twitting about it. As a matter of sound policy, it’s not merely archaic, but inane.
Defense Secretary Chuck Hagel said that the military should “continually” review its prohibition on transgender people in the armed forces.
“Every qualified American who wants to serve our country should have an opportunity if they fit the qualifications and can do it,” Mr. Hagel said in an interview.
Some still see transgender people as “icky” or “unnatural,” which has nothing to do with anything. That some will have surgery, paid for by the military budget, rankles people who get hinky about transgender folks, but the cost is trivial. There aren’t that many people involved, but for each of them, it’s a big deal.
You don’t have to be transgender. You don’t even have to like them. It’s not up to you whether someone else is the way you want them to be. You live your life and let them live theirs. The only issue, as Hagel notes, is whether they are qualified to serve.
All of this comes as a matter of policy, and we’re well beyond the point of appreciating Trump’s inability to grasp the nuance of sound policy, his unwillingness to learn, and his refusal to listen to those who actually know stuff, despite his knowing more than the generals. Pandering to the worst instincts of his base isn’t exactly a surprising way for Trump to go.
But isn’t the judicial branch of government there to protect us from the dumb guy? What about Equal Protection? Why would the Supreme Court reverse the courts below and lift the stay?
One American Civil Liberties Union lawyer called the new and ostensibly improved transgender ban “transphobia masquerading as policy.” And a former naval aviator, reacting to the Supreme Court’s latest move, wrote in a Times op-ed that her career in the armed forces was just dealt a punishing blow.
The justices provided no explanation for their decision, which puts on hold rulings that have been in place for well over a year and that have allowed transgender troops to continue to serve openly under a directive by the Obama administration that was years in the making.
It wasn’t too long ago that the military prohibited gay, as well as transgender, people from serving in the military. There were facially strong rhetorical arguments against it, even though they were already serving without incident, but kept their heads down. These aren’t any different than the myriad rhetorical arguments used today for a wide variety of radical changes. When it came to the military, the fears of disruption proved to be bunk. It was arguably a huge problem. It was, in reality, no problem at all.
The change, however, did not happen because Congress passed a law. It happened because President Obama had a pen and a phone. When he was president, he got to sign Executive Orders. But he’s not president anymore.
It is difficult to parse cryptic orders that contain no reasoning. But this latest move suggests that Chief Justice John Roberts Jr. and the justices on the Supreme Court’s conservative wing are inclined to bend to the whims of an administration that often sets out to harm people by executive fiat, only to get challenged in court and later complain that judges are standing in the way of government policies.
Without an opinion explaining its “cryptic order,” the New York Times comes to the only conclusion that comports with its policy preferences: the partisan hacks in the conservative wing of the Supreme Court are bending to the whims of this evil president. Or, they could have applied Occam’s Razor and concluded that the policy implemented by Executive Order can be undone by Executive Order, whether it’s good policy or not.
The cynical view of the Supreme Court, promoted whenever the Court reaches a decision that fails to produce a progressive outcome, is that they aren’t independent jurists but slaves to their master, Trump. How that fails to square with the fact that their decisions occasionally go the other way is left unanswered, as narratives no longer need to accommodate facts. When the ruling is wrong, the Court is reduced to tribalism. Who said projection wasn’t fun, NYT?
There are concerns about how the normalization of gay and transgender people is happening in an overheated, and underthought, debate. When it becomes too cool, too edgy, for impressionable people to become something they’re not, bad choices can happen, especially when people are nudged rather than left to make their own serious decision, and are later regretted. No one wants to hear this, as it, too, cuts against the narrative.
It’s no more cool to be transgender than not. If it’s what you are, then be it. If it’s not for you, then don’t, but let anybody who is alone. It’s none of your business. And if they can serve in the military without issue, then who cares if they’re transgender or have green eyes?
But leave the Supreme Court out of your narrative. The judiciary isn’t the body to construct and implement public policy, good or bad. Addressing these questions belongs to Congress, and if the president is going to circumvent a resistant Congress as Obama did, then be ready for the next president to undo it. If the next president lacks the authority to undo it, his predecessor lacked the authority to do it in the first place.
The problem isn’t that the conservative wing of the Court is comprised of partisan hacks, but that they are judges and you don’t like their decision. Hey, lots of people don’t like things, but that doesn’t change the Supreme Court into the final arbiter of your preferred executive public policy, even if it’s the right policy.