Saturday, January 26, 2019

Kavanaugh Drives Court's Turn to the Right

      For the first three months of the Supreme Court's new term, the narrowly confirmed rookie justice Brett Kavanaugh appeared to be playing the role of Sherlock Holmes' proverbial non-barking dog. The anti-abortion groups that had so heavily invested in Kavanaugh's hard-fought confirmation voiced disappointment in December, for example, after Kavanaugh failed to give three conservatives the needed fourth vote to hear appeals from two states seeking to reinstate bans on funding for Planned Parenthood clinics.
      That was then, but this is now. Kavanaugh apparently helped provide the critical votes needed for a pair of decisions announced in orders this week [Jan. 22] that signal a possible hard turn to the right in coming months and future terms. He was part of a 5-4 majority that reinstated the Trump administration's restrictive policy on transgender military service members and likely one of the four votes needed to hear a new case on Second Amendment gun rights.
      The interim action in the transgender military cases, Trump v. Zaronski and Trump v. Stockman, came with no written opinion on a 5-4 vote with the four liberal justices in dissent. Two federal courts had issued injunctions to block the policy. The conservative justices voted to grant the administration's request for a stay, an extraordinary remedy, usually disfavored in Supreme Court practice, while the liberals would have left the injunctions in place pending full appeals.
      Kavanaugh's presumed stance is also the likely explanation for the Court's decision to take on a gun rights case for the first time since its pair of decisions in 2008 and 2010 striking down laws banning possession of handguns in the name of a Second Amendment right for self-defense in the home. In the new case, New York State Rifle and Pistol Association v. City of New York, the justices are being asked to extend that carefully limited right outside the home. That step could set the stage for a broad constitutional right to go armed in public that could supersede gun licensing requirements enacted in a host of states and cities.
      The case tests an unusual local ordinance that prohibits transportation of firearms even if licensed, unloaded, and locked to shooting ranges outside New York's city limits. Still, Adam Winkler, a pro-gun control law professor at UCLA, told The New York Times's Supreme Court correspondent Adam Liptak that he viewed the case as a likely "landmark . . . with major implications for gun policy."
      The Court's actions in the transgender service members cases have a more immediate impact than the foreboding certiorari grant in the gun rights case. The policy may be less than a ban, as the Pentagon stressed, but it casts doubts over the thousands of transgender service members who have been serving openly according to their gender identity under an Obama administration policy.
      Trump initiated the takedown of the Obama policy with a tweet on July 26, 2017, stating that the government "will not accept or allow . . . transgender individuals to serve in any capacity in the U.S. military." Instead of a complete ban, the then-Defense Secretary James Mattis responded to Trump's directive by fashioning a policy that included a "categorical reliance exemption" for transgender service members who entered or remained in service after the announcement of the Obama policy.
      Federal district court judges in Seattle and Los Angeles, ruling in cases brought by transgender service members, issued injunctions blocking the policy. In the first of the injunctions — issued on Dec. 22, 2017 — U.S. District Court Judge Marsha Pechman in Seattle rejected the administration's arguments for "military deference" to the policy. She went on to find the justifications for the policy change to be "not merely unsupported but actually contradicted" by the Obama administration's study of the issues.
      Facing other cases in California, Maryland, and the District of Columbia, the administration adopted a less-than-urgent appellate strategy. The government applied for limited stays only to allow the military to reject new transgender recruits and then dropped the appeals altogether. Pechman made her preliminary injunction permanent after a contentious hearing on March 27, 2018. She rejected the administration's defense of what government lawyers described as an "exception" to allow transgender service members to serve according to their biological sex.
      After batting 0-for-4 in district courts, the government stepped up its game with extraordinary petitions asking the Supreme Court to grant "certiorari before judgment" in the Washington and California cases without waiting for the Ninth Circuit appeals court to rule. As an alternative, the solicitor general's office filed parallel applications in those two cases to stay the district court injunctions. A stay is a form of extraordinary relief that, under Supreme Court Rule 20, is justified only in "exceptional circumstances."
      Supreme Court justices take pride in the role that written opinions play in explaining and justifying their decisions. In this instance, however, none of the justices wrote or uttered a single word to explain the deference to a policy, on the basis of an incomplete record, that federal judges in four different cases had rejected.
      The inference is clear: five Republican-appointed justices, including the Trump appointees Kavanaugh and Neil Gorsuch, decided simply to back the Tweeter in Chief in an animus-driven decision to consign brave and honorable transgender service members to the limbo of separate and unequal status. They deserved better: thanks for your service, indeed.

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