Under Roberts, Supreme Court wades into transgender debate, avoids other tough issues

Supreme Court Chief Justice John G. Roberts Jr. listens as President Trump delivers his first State of the Union address to a joint session of Congress in 2018.
Supreme Court Chief Justice John G. Roberts Jr. listens as President Trump delivers his first State of the Union address to a joint session of Congress in 2018.
(Win McNamee / Associated Press)

On what is typically the last day to take on new cases in the current term, the Supreme Court — as it often does — gave a little something to both sides of America’s culture wars Tuesday.

The justices cleared the way for President Trump’s military ban on most transgender people and agreed to hear its first 2nd Amendment gun case in nearly a decade. But they also brushed aside for now requests to resolve the fight over young immigrants known as Dreamers and to revisit the landmark abortion ruling Roe vs. Wade.

The decisions from a closely divided court largely reflect the dual instincts of Chief Justice John G. Roberts Jr., who is both a staunch conservative and a court leader who prefers to go slow and steer around the partisan battles that have consumed Washington.

Roberts, who will be 64 on Sunday, is determined to preserve the high court’s standing as impartial and independent, not an ally of Republicans or Democrats. It’s a job that has become increasingly difficult amid the widening partisan divide under Trump.


In late November, Roberts took the extraordinary step of rebuking Trump for referring to an “Obama judge.” Roberts said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”

The court — particularly with the new, more reliable conservative majority — could have set all of these cases to be heard and decided by this summer, something that conservatives would have celebrated. Instead, with Roberts holding the key vote, the court has been more measured.

With conservatives in dissent, the justices have turned away several cases, including a funding dispute over Planned Parenthood. They also refused to enforce Trump’s new limits on asylum claims. On Tuesday, they refused to hear the case of a high school football coach who says he was fired for praying on the field. The court also put off a decision about gay rights in the workplace.

The court’s refusal to intervene this term on the Obama-era Deferred Action for Childhood Arrivals leaves in place lower-court protections for 700,000 immigrants brought to this country illegally as children. It may also complicate ongoing talks to end the government shutdown because it reduces the leverage of Trump, who over the weekend offered to extend temporary protections for Dreamers in return for taxpayer money for a wall on the U.S.-Mexico border.

Still pending is the administration’s plan to add a citizenship question to the 2020 census. Trump’s lawyers said Tuesday that they would ask the court to make an exception to its usual timetable and rule by June on whether they can include the question on printed forms. State attorneys had sued, alleging the extra question would deter immigrant families from answering and thereby depress the population counts in states such as California, New York and Florida. A federal judge in New York ruled that Commerce Secretary Wilbur Ross wrongly decided to add the question after consulting White House political advisors.

Even within the transgender military case, Roberts opted for a split decision. He voted with the four conservatives to permit the military to revert to a policy that was in effect before 2016. But he rebuffed the Trump administration’s request to immediately decide the constitutional case this year, sending the litigation back to California to rule on the merits and delaying any final decision for a year or more.

The liberal justices dissented Tuesday when the court set aside nationwide orders from three federal judges who had blocked Trump’s ban on transgender troops on the grounds that it was unconstitutional. Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan said they would have left in place the lower-court rulings that had blocked it.

The court’s decision, though not a final ruling on the constitutional question, is a significant victory for Trump and his lawyers. Last month, they filed emergency appeals in the high court and urged the justices to act now to put Trump’s ban into effect while the legal fight continued in the lower courts.


Trump’s solicitor general, Noel Francisco, said keeping the president’s policy on hold “posed too great a risk to military effectiveness and lethality,” and he urged the court to defer to the “professional judgment” of the military’s leaders.

The decision suggests the justices are likely to uphold the Trump policy when the constitutional case eventually reaches the high court. But advocates for transgender troops believe their lawsuits will reveal that the Defense Department had no valid basis for reimposing a discriminatory policy.

In Trump vs. Karnosky and two companion cases, the court said the “preliminary injunction is stayed pending disposition of the government’s appeal” in the lower courts.

Kerri Kupec, a spokeswoman for the Justice Department, said officials there “are pleased the Supreme Court granted stays in these cases, clearing the way for the policy to go into effect while the litigation continues.”


Lawyers who challenged the Trump policy said the legal fight had just begun.

“For more than 30 months, transgender troops have been serving our country openly with valor and distinction,” said Peter Renn, legal counsel for Lambda Legal in Los Angeles. “But now the rug has been ripped out from under them, once again. We will redouble our efforts to send this discriminatory ban to the trash heap of history, where it belongs.”

In 2016, Defense Department officials in the outgoing Obama administration decided transgender individuals would be permitted to enlist in the armed forces, and none would be discharged solely because of their gender identity.

In June 2017, however, President Trump tweeted that the “United States government will not accept or allow” transgender people “to serve in any capacity in the U.S. Military.” He told then-Defense Secretary James N. Mattis to devise a new policy to put the edict into effect.


Early last year, the Defense Department adopted this more restrictive policy for transgender individuals; officials insisted it stopped short of a total ban: “Transgender persons should not be disqualified from service solely on account of their transgender status,” it said. Transgender individuals, however, “would be required to serve in their biological sex,” the lawyers explained, while those who undergo a transition “would be presumptively disqualified from service.”

The Defense Department said it had exempted transgender troops who had revealed their identity in response to the 2016 policy, and it said 937 troops could continue to serve openly as transgender people under the new policy.

Studies and surveys cited by advocates say about 9,000 and perhaps as many 15,000 transgender people are serving now in the military.

Acting in response to lawsuits, federal judges in Riverside, Seattle, Baltimore and Washington, D.C., issued nationwide orders blocking Trump’s policy from taking effect on the grounds it appeared be unconstitutional. Two weeks ago, the U.S. Court of Appeals for the District of Columbia reversed the judge’s order in one case and said the new policy was not an absolute ban on transgender people serving in the military.


Advocates for transgender troops disagreed. The D.C. circuit court’s “decision is based on the absurd idea that forcing transgender people to suppress who they are in order to serve is not a ban,” said Jennifer Levi, transgender rights project director for GLBTQ Legal Advocates & Defenders.

In early December, Trump’s lawyers asked the Supreme Court to either take up the cases directly without waiting for a ruling by an appeals court or to issue an order setting aside the lower-court injunctions so Trump’s policy could take effect.

The Defense Department said in a statement that “it is critical that DoD be permitted to implement personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world.”

Top Democrats criticized the policy. House Speaker Nancy Pelosi (D-San Francisco) said in a tweet that Trump’s “ban on trans Americans serving in our nation’s military was purpose-built to humiliate brave men & women seeking to serve their country. Deeply concerning that #SCOTUS is allowing his ban to proceed for now.”


Sen. Dianne Feinstein (D-Calif.) called the court’s action “deeply disappointing.”

“This decision creates unnecessary confusion for transgender individuals serving in the military,” she said. “The ban would essentially restore ‘Don’t Ask, Don’t Tell’ for transgender service members, only allowing them to serve if they hide their true identity.”

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