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Supreme Court Allows Trump To Discriminate Against Transgender People Willing To Die For Stupid Country

Court will not enjoin Trump from discrimination while lower court cases play out.

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The Supreme Court dealt another blow to equality today, proving once again that the Republicans don’t steal Supreme Court seats and promote alleged attempted rapists for nothing. In a 5-4 ruling, the Court refused to enjoin the Trump administration from imposing a ban on transgender people in the military while lower courts, and eventually the Supreme Court, deliberate the legality of Trump’s actions.

It’s an unfortunate decision, but not a terribly surprising one once you appreciate how conservative jurists think. Conservatives have shown us, from the Korematsu decision to the Muslim Ban, that “national security” are the magic words that short circuit their wee brains. To conservatives those words open the door to any kind of racism and bigotry the government can dream up, just as surely as “abracadabra” opens a door in a children’s fantasy.

It follows then that conservatives imbue Godlike powers on the “Commander-in-Chief” to issue recruitment orders for his army. Once President Bone Spurs decided that he could distract his base with bigotry towards transgender individuals, it was always likely that the conservatives on the Supreme Court were going to let him do it, at first.

Trump’s actions were even more likely to get an initial pass because his refusal to accept the service of transgender people overturns a President Obama order to allow transgender people to serve openly. While transgender people have been in the military, probably since we’ve had a military, executive protection of their open service only dates back to 2016, so it’s relatively easy for conservatives to argue that rescinding Obama’s order will not cause a great disruption of our fighting forces. The shame of Democrats taking so long to embrace transgender equality is that it gives conservatives the hope that they can turn back the tide of history if they just hold out long enough.

So, this decision is not surprising, but it also doesn’t mean that this issue or case is over.

Procedurally, this was an easy case for conservatives. Trump ordered a thing having to do with the military, lower courts issued a temporary injunction against Trump stopping him from doing that thing, all the Supreme Court had to say was that Trump could do the thing with the military until lower courts decided whether or not that thing was legal. For conservatives, that’s a pretty straight-forward application of deference to the Commander-in-Chief.

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Eventually lower courts will issue a ruling on the transgender ban, and what we’ve seen in other cases are that courts are reluctant to allow Trump to do whatever he wants, unless he has a good reason. “Owning the libs,” courts have determined, is not a good reason. “Placating the bigots who vote for me,” it turns out, is not a good reason. Trump’s greatest legal weakness so far is that he rescinds Obama era policies because they’re Obama policies, and courts have been trying to tell him that he can’t do that. There’s something about the legal meaning of “arbitrary and capricious” that Trump and his legal team continually fail to grasp.

Remember, it took Trump three whacks at the Muslim Ban to get it within shouting distance of an allowable reason. We’re still dealing with transgender ban, version one.

When there is a ruling it will get appealed to the Supreme Court and they will have to make a decision. Even though conservatives act like “national security” is a sufficient reason for anything, the Trump people still have to make the connection between the transgender ban and national security.

I honestly don’t know that the Trumpsters can. I don’t know that they can facially argue that banning people who want to fight for America helps the national security of America. The generals didn’t ask for or demand this ban. There’s no study showing that the military was worse off under Obama’s policy of openness than before. The underlying legal argument for this trans ban is so weak that Trump is pretty much left with “It’s MY military and I’ll do what I want with it.”

That might be enough for the conservative justices on the Supreme Court, of course. But it might not be. At the very least, there’s still reason to hope.

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The Roberts Court will have to answer for the bigotry it’s allowed, if not in this life then in the next one. But they usually try to hide it under the hood of national security. All Trump is giving them is a hat.

Supreme Court Permits Trump’s Transgender Military Ban To Move Forward [Huffington Post]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.

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