The Trump administration is seeking to bypass the D.C. Circuit—and two other federal appeals courts—and head straight to the Supreme Court in the high-profile litigation over the administration’s effort to ban transgender people from serving openly in the military.
The administration on Friday (Nov. 23) filed petitions for certiorari before judgment in three cases challenging the military’s trans ban, including Doe 2 v. Trump, which is currently pending at the D.C. Circuit. The request for the Supreme Court to take the cases, prior to any ruling from the courts of appeals, is highly unusual. Under Supreme Court rules, the procedure is reserved for cases “of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination” by the high court.
In Doe 2, a D.C. district judge entered a nationwide injunction preventing the administration from implementing its transgender policy, which would effectively disqualify most trans people from military service. The policy seeks to undo an Obama-era directive that allowed trans people to enlist and serve openly for the first time. The government’s appeal of the Doe 2 injunction has been fully briefed at the D.C. Circuit, and the case is set for oral argument before Judges Griffith, Wilkins, and Williams on Dec. 10.
District judges in California and Washington have issued similar nationwide injunctions against the trans ban, and those injunctions are currently pending before the Ninth Circuit.
The administration filed cert petitions before judgment in all three cases, arguing that the injunctions threaten the military’s “readiness, good order and discipline, sound leadership, and unit cohesion.” “Immediate review is necessary,” the government said, so that the injunctions do not stay in place “any longer than is necessary.” The cert petitions ask the Supreme Court to take the case during its current term.
The arguments in the cert petitions echo the arguments the government made this fall in its briefing before the D.C. Circuit. In its briefs, the government said that the trans ban reflects the best judgment of military leaders and that the nationwide injunction infringes on military decision-making.
Then, after filings its briefs, the government notified the D.C. Circuit on Nov. 7 that it intended to seek expedited Supreme Court review of the case. It told the D.C. Circuit that it would be ready to present oral argument as scheduled on Dec. 10 but added that the government “defers to the panel’s determination regarding how to proceed in light of this development.”
The challengers to the trans ban responded the next day, telling the D.C. Circuit that the administration “has made no showing of harm that would warrant immediate Supreme Court intervention without a single decision by a court of appeals.” They asked the D.C. Circuit to proceed with the case as planned. So far, the D.C. Circuit has given no indication that it intends to do otherwise.
Meanwhile, the challengers of the trans ban have 30 days to file a response to the government’s cert petitions at the Supreme Court.
This is not the first time the Trump administration has tried to skip the D.C. Circuit and bring controversial litigation directly to the Supreme Court. Currently pending before the justices is a cert petition in NAACP v. Trump, a challenge to the administration’s decision to end the Deferred Action for Childhood Arrivals program. That case was pending before the D.C. Circuit when the administration on Nov. 5 sought cert before judgment.
