SCOTUS Permits Discharge In COVID and Transgender Cases

Comparing Navy Seals and Shilling.

In March 2022, the Supreme Court partially granted the Biden Administration's emergency application in Austin v. U.S. Navy Seals 1-26.  This order allowed the Navy to discharge many service member who refused to receive the COVID vaccine.  The vote here was (likely) 6-3. Justice Kavanaugh wrote separately to explain that the commander in chief should receive deference in military affairs. Justices Thomas, Alito, and Gorsuch dissented, and would have denied the stay. I wrote about the ruling at the time here.

Today, the Supreme Court granted the Trump Administration's emergency application in United States v. Shilling. This order allows the military to discharge transgender service members. The vote here was (likely) 6-3. Justices Sotomayor, Kagan, and Jackson dissented.

Was Shilling based on the likelihood of success on the merits, or the risk of irreparable harm? I suspect the former. The Court likely determined that the transgender service members are unlikely to prevail. There are approximately 4,000 transgender service members who will be discharged. Then again, the experience with the COVID vaccine teaches that a service member who is discharged can later be re-instated. Trump ultimately reinstated nearly 9,000 service members who refused the jab.

I suppose that the Chief Justice and Justices Kavanaugh and Barrett are being consistent. I suspect the troika thought that the Navy Seals and transgender service members were likely to lose. And I think Justices Thomas, Alito, and Gorsuch thought that the Navy Seals were likely going to win and the transgender service members will likely lose. Justice Sotomayor and Kagan allowed the discharge for those who refused the vaccine, but would have blocked the discharge of the transgender service members.

One last point: how does Shilling interplay with Skrmetti? It's possible the Court will rule against the transgender service members, on the grounds of military deference, but rule in favor of the Tennessee plaintiffs. But I think that split is unlikely. This order probably signals that Tennessee will prevail.