Not for the first time – and probably not for the last – the U.S. Supreme Court ruled this week that an executive order signed by President Donald Trump can be enforced while the lower courts take up challenges to its legality. On Tuesday, the nation’s high court voted to lift a lower court injunction against President Trump’s ban on transgenders serving in the military, a temporary but significant victory for the administration and the powers of the Executive Branch.
The U.S. Supreme Court on Tuesday let President Donald Trump enforce his policy barring certain transgender people from joining or staying in the military as the justices put on hold lower court rulings blocking the plan on constitutional grounds.
The conservative-majority granted the Trump administration’s request to lift injunctions issued by federal judges against the policy while a legal challenge continues in lower courts.
Liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor said they would have kept the injunctions in place blocking the policy. The justices refused the administration’s request for them to decide the merits of the legal fight even before a California-based federal appeals court already considering the matter is given a chance to rule.
By itself, this ruling does not automatically mean that Trump’s transgender ban will be upheld by the judiciary or even by the Supreme Court. But the fact that this decision came in a 5-4 split does indicate where the justices may eventually land when and if this case comes before them.
It is difficult to imagine how the courts could ultimately choose to rule against Trump in this matter. He is the commander-in-chief of the U.S. military, and he was reversing a policy that had only been in place for a year. The architect of that policy was the previous commander-in-chief. A ruling against Trump would have to explain why Obama had the authority to allow transgender individuals to serve in the military while Trump lacks the authority to roll back that rule. And presumably, they would need to do so in reference to the law, and not their own LGBT sympathies, which have little or nothing to do with the case.
It is, after all, not up to the judiciary to decide whether or not something is legal by whether or not they like the policy. It is up to them to decide if it is legal based on the Constitution, based on congressional law, and based on court precedent. Once they begin straying from these foundational underpinnings, they become activists in black robes and nothing more.