Openly transgender persons have been serving in the military for two and a half years and leaders from each branch have testified that their service has not harmed the military. Although the government cries that the sky is falling, it has offered no evidence to support its dire claims.

ere’s another level of madness: The Supreme Court ruled on January 22 that the Trump administration could force the Pentagon to adopt bigoted transgender policies, even though a lower court had already held the policies likely to be unconstitutional. The swing vote putting the court on record supporting baseless discrimination was Chief Justice John Roberts. Roberts could as easily have voted on the side of tolerance and the rule of law. His decision looks cowardly. It is unexplained. The court offers no argument – none – to support its decision. The court offers no supporting evidence to justify its arbitrary and capricious reinstatement of gender bias as a lawful policy under the Constitution. And the body politic, never mind the general public, hardly responds at all to an action that replaces due process of law with government by decree to which there is no avenue of appeal. Governance by tweet has brought us to a place of judicial anarchy.

In the ordinary course of events, a plaintiff – here, several transgender soldiers affected by the Trump administration’s ban – will file a case seeking to block (or overturn) an action in federal district court. Typically cases will be decided first at the district court level, then appealed to a higher court where it is affirmed or reversed (or some of both). Only after this careful process builds a solid record of evidence and argument will the Supreme Court even consider hearing a further appeal. Out of some 7,000 appeals to the Supreme Court each year, it decides maybe 130 (holding hearings on about 80). It is extremely rare for the court to deviate from this orderly process. The Supreme Court’s rules allow such deviation “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this court.” [Rule 11] The court identified no such “imperative public importance,” but for some reason allowed these transgender bias cases to jump the line.

On January 22, the Supreme Court threw out regular procedure, without explanation. The court issued orders in two cases – Trump v. Karnoski, et al. (18A625) and Trump v. Stockman, et al. (18A627). The cases are similar but come from different jurisdictions in California and Washington. The initial plaintiffs (Karnoski, Stockman, et al.) won their case at the district level, where the court not only ruled in their favor voiding the transgender ban, but also issued an injunction preventing the government from implementing the ban before the litigation was completed. The government appealed the decision but did not appeal the injunction issued December 11 (or the one issued December 22). That is an indication that there was no arguable emergency in December 2018.

In issuing the injunctions, the district courts also found, on the record, that the government’s forcing the military to adopt a transgender ban was likely to be found unconstitutional by higher courts.

As defendants in a companion case, Trump v. Jane Doe 2 (December 2018), argued:

The district court correctly concluded that the government’s ban on military service by transgender individuals is likely to be found unconstitutional and that a preliminary injunction is necessary to prevent irreparable harm to respondents while the parties work toward final resolution of respondents’ claims on the merits.

The merits are what should matter in any legal proceeding that purports to be a search for truth. The district court issued its injunction after concluding the government’s transgender ban was likely unconstitutional, a substantive judgment on the merits. The Supreme Court, without considering the merits, lifted the injunction without explanation. How does this not corrupt the process below? How is this not a signal that five justices are ready to find transgender prejudice constitutional? How is this not a rather genteel but blatant obstruction of justice?

How did we get to this particular place of radical cruelty from an unaccountable, authoritarian court without raising a ruckus among those who still pretend the Constitution means something? The court has a solid bloc of reactionary justices in the quartet of Thomas, Alito, Kavanaugh, and Gorsuch, all of whom voted for the transgender ban. Roberts chose to join them, just as he chose to join the reactionaries in 2013 in gutting the Voting Rights Act when he preposterously argued that racial bias was a thing of the American past. Since that case, Shelby County v. Holder, almost 1000 polling places have been closed, mostly in minority districts, one of the more obvious tools of racist voter suppression enabled by the Supreme Court.

The justices voting to defend voting rights included Ruth Bader Ginsburg, who wrote a dissent joined by Justices Breyer, Sotomayor, and Kagan. These same four justices voted this year to maintain the injunction against the military transgender ban.

So what is it with Roberts that, faced with a clear opportunity to vote for democratic process, for inclusion, for tolerance, he opts for repression and bigotry? In gutting the Voting Rights Act, Roberts voted against allowing despised minorities to participate as political equals in a society he pretends is colorblind. He voted in denial of reality and in disregard of Congressional findings. With the transgender cases, he again chooses bigotry over decency and he again votes to undermine constitutional processes, this time of the US judicial system. What kind of legacy is he building?

There are maybe 15,000 transgender military personnel on active or reserve duty now, no one knows for sure. There are maybe 134,000 transgender military veterans. The Supreme Court has unsettled their futures, with no guideline for how anyone should proceed. All the court did was lift injunctions, and that may not take effect before the end of February. After that, no one is required to do anything. The Defense Department, facing no immediate crisis it can see, does not have to reinstate the transgender ban in its previous or any other form. There is concern that any significant change from the status quo would create a crisis of its own. A Pentagon spokesman said with careful fuzziness:

It is critical [that the Defense Department] be permitted to implement personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world.

Transgender personnel have served in the military since the American Revolution. For most of that time, the military treated the issue with a blind eye. More recently, as more and more minority groups struggled for rights and self-respect, openly bigoted resistance came out of other closets. At the urging of evangelical Christians, Trump placated them with his July 26, 2017, tweet: “that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military…” This caught the Pentagon by surprise, setting off the policy chaos the Supreme Court just added to.

The transgender community has reacted with predictable fierceness, since the administration seems bent on their metaphorical if not literal extinction. In a powerful New York Times op-ed, 1997 Annapolis graduate and transgender Navy Air Force pilot Brynn Tannehill describes the recent evolution of humane policy, a process in which she participated. She also describes her effort to return to active duty, apparently sabotaged by the Supreme Court, and adds:

All of this makes the administration’s dogged attempt to undo everything achieved over the last few years even more baffling. The ban was developed in secret, without the sort of careful study that went into the policy it reversed. It does not reflect any current medical understanding of transgender people, and it has been denounced by the American Medical Association, the American Psychological Association and the American Psychiatric Association.

No one, including the lawyers for the Trump administration, has been able to show that inclusion of transgender service members or providing care to them has had any measurable negative impact on morale, readiness or unit cohesion.

The bigotry of the Trump administration and now the Supreme Court is so palpable as to seem perhaps a distraction from something else, but what? US Solicitor General Noel Francisco offers a possible higher stake in his filing on the transgender cases. In a single passing sentence without further amplification, the solicitor general complains:

The accelerating trend of lower courts’ enjoining enforcement of federal policies nationwide, including as to nonparties, reflects an abandonment of settled principles and underscores the need for this Court’s review.

This is not your average throwaway line. It is a sweeping attack on the court system in general for its efforts to protect the American people – those annoying “nonparties” – from unconstitutional power grabs by this administration. The shibboleth of “activist” judges has long been a staple of right-wing propaganda, but now it’s shape-shifted into an attack on courts who defend the nation against “enforcement of federal policies” when those federal policies fail to meet constitutional or legislative standards. (As one judge wrote: “Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”) Who better to rid the president of these troublesome judges than a Supreme Court well-stocked with ideologues who believe in the expansion of executive power? With this ugly decision in favor of transgender bigotry, the court also sends a message to lower courts: if you go too far checking the president’s power then we’ll have to disempower you – human decency, justice, those are a chump’s game.