Adam—The M5M is sure to get this wrong, so here’s a quick summary. Today SCOTUS entered the attached order that stays a lower-court ban on President Trump’s order barring “trans troops” from serving. It’s a bit of a ping-pong game, and SCOTUS’s order could end up getting vacated down the road (more on this below).
But for now, the stay allows the Trump Administration to proceed with discharging trans troops. It will last at least until someone seeks cert from SCOTUS, which could be 18 months to two years. (The median duration of appeals in the Ninth Circuit is 15 months. You then get 90 days to file a cert petition. Then in this case there’ll probably be full-scale briefing, complete with scores of amicus briefs, and then we must await a SCOTUS decision on whether to grant cert. If cert is granted, add another six to nine months.)
I thought you might appreciate a step-by-step analysis of how we got here:
· Biden Administration: Trans troops can serve (trans in)
· Trump Administration: Trans troops cannot serve (trans out)
· District Court (sitting in Washington state): Trump’s ban is preliminarily enjoined (trans in)
· Trump appeals to Ninth Circuit, asks Ninth Circuit to stay the District Court’s injunction; Ninth Circuit denies motion, allowing injunction to stand (trans in)
· Trump asks SCOTUS to stay the District Court’s injunction; SCOTUS grants stay 6-3 (trans out, for now)
Here’s what could happen next (there are more permutations, but these are the big ones):
· Ninth Circuit **upholds** the ban, the trans troops seek cert, and SCOTUS **denies** cert: injunction dies, ban becomes permanent (trans out)
· Ninth Circuit **upholds** the ban, the trans troops seek cert, and SCOTUS **grants** cert: stay remains in force until SCOTUS decides the case and issues a judgment (trans out pending decision)
· Ninth Circuit **vacates** the ban, Trump seeks cert, and SCOTUS **denies** cert: stay terminates, preliminary injunction comes back to life, case goes back to District Court, and the case is litigated (trans in pending outcome of litigation)
· Ninth Circuit **vacates** the ban, Trump seeks cert, and SCOTUS **grants** cert: stay remains in force until SCOTUS decides the case and issues a judgment (trans out pending decision)
There are two other preliminary injunctions too—one from the District of D.C. and one from the District of New Jersey. I’m not sure of the status of those, but I have to think that the District Judges will now voluntarily stay their injunctions pending appeal. To do otherwise given SCOTUS’s stay would be petty and wasteful, in my opinion.
—**Rob**