President Trump has issued an executive order banning transgender individuals from service in the armed forces. He issued a similar order during his first term. This time, a group of allegedly transgender soldiers or would-be soldiers sued in Seattle to block implementation of the order.
District Court Judge Benjamin Settle granted a preliminary injunction banning the order from taking effect. Judge Settle called it “unsupported, dramatic and facially unfair.” I must have missed the constitutional law class on the “unsupported, dramatic and facially unfair” standard.
Today the Supreme Court issued a 6-3 order staying Judge Settle’s preliminary injunction. This means that the administration will be able to continue implementing its order as the case wends its way toward final resolution in the courts.
Today’s ruling shouldn’t be a surprise, since virtually the same situation arose in 2019, during Trump’s first term. Plaintiffs challenged Trump’s transgender order, and got a preliminary injunction in the district court. Then, as now, the Supreme Court stayed that injunction, allowing Trump’s policy to remain in effect. I am not certain of the later history of that lawsuit, but I take it that it became moot when Joe Biden won the 2020 election and reversed Trump’s policy.
Given that the Court had ruled on virtually the identical issue in 2019, today’s order was predicable. (Then, as now, all liberal justices dissented.) But given the current legal turmoil over the President’s many executive orders, today’s ruling is nonetheless significant.
The Democrats have brought a blizzard of lawsuits, seeking to block administration policies. In every case, they judge-shop, bringing lawsuits where they have a heavy probability of getting a partisan Democratic Party judge. In nearly every case, their judges have cooperated. The newspaper headlines we have seen so far arise out of the earliest stage of litigation. Judges have issued temporary restraining orders and temporary injunctions, sometimes without even waiting to hear the government’s arguments. These lawsuits will go on for years, but the Democrats are trying to generate headlines to convey the impression that Trump is acting lawlessly, and an independent and non-partisan judiciary is uniformly arrayed against him. The press, of course, is in on the plan and doing its best to make it work.
So today’s Supreme Court order, while thoroughly predicable on paper, is a useful reminder that, judge-shop as it will, the Democratic Party ultimately does not own the federal courts.
