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Analysis

Supreme Court reinstates Trump’s ban on trans servicemembers in the military

This will end badly.

Retired Army lieutenant colonel Ann Murdoch poses for a photo in Arlington National Cemetery after attending a wreath laying ceremony at the Tomb of the Unknown Soldier on June 8, 2018. - President Donald Trump has made clear his opposition to transgender Americans serving in the military, but that didn't deter several transgender veterans from laying a wreath Friday, June 8, 2018 at the Tomb of the Unknown Soldier just outside Washington. (Photo by Mandel Ngan / AFP) / With AFP Story by Elodie CUZIN &  Michael MATHES: US-military-transgender-politics        (Photo credit should read MANDEL NGAN/AFP/Getty Images)
Retired Army lieutenant colonel Ann Murdoch poses for a photo in Arlington National Cemetery after attending a wreath laying ceremony at the Tomb of the Unknown Soldier on June 8, 2018. - President Donald Trump has made clear his opposition to transgender Americans serving in the military, but that didn't deter several transgender veterans from laying a wreath Friday, June 8, 2018 at the Tomb of the Unknown Soldier just outside Washington. (Photo by Mandel Ngan / AFP) / With AFP Story by Elodie CUZIN & Michael MATHES: US-military-transgender-politics (Photo credit should read MANDEL NGAN/AFP/Getty Images)

The Supreme Court handed down a pair of orders on Tuesday that effectively reinstate the Trump administration’s ban on trans military service.

The cases are Trump v. Karnoski and Trump v. Stockman. In both cases, a lower court halted the ban. Tuesday’s orders temporarily stay those lower court decisions while the cases make their way through the federal courts. The Supreme Court voted along party lines to stay these decisions, with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan in dissent.

While the Republican-controlled Supreme Court was always likely to take up these cases eventually — and always likely to rule in favor of Trump — the Court’s decision to permit the Trump administration to stay these lower court orders suggests that the Court’s majority is especially eager to uphold Trump’s policy.

Even setting aside the fact that the Court’s Republican majority is unlikely to be sympathetic to transgender civil rights under any circumstances, courts are especially likely to defer to the elected branches on questions involving the military or national security.

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Indeed, the Court shown such extraordinary deference to policies that were supposedly enacted to advance national security, that it’s even allowed those policies to stand when they violate an explicit provision of the Constitution — most recently in Trump v. Hawaii, the Muslim ban case.

Likewise, in its 1981 decision in Rostker v. Goldberg, the Court held that the Selective Service System may engage in outright gender discrimination. Rostker arose “in the context of Congress’ authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference,” Justice William Rehnquist wrote for the Court.

In fairness, there is a strong legal argument that Trump’s transgender service ban should not be entitled to deference because of the slipshod process Trump used to implement the ban. In the alternative universe where Justice Merrick Garland is the Supreme Court’s swing vote, perhaps that argument could prevail. But it is unlikely, to say the least, that this Court will ultimately side against Trump.