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.

Comments

[Dr. Ed 2]

Are the trannies getting DDs?

It's not just that the folks refusing the COVID toxin (I refuse to call it a "vaccine") were kicked out, but they were kicked out with Dishonorable Discharges (DDs) which are considered FELONY convictions with all the consequences of a felony conviction.

For this to be the same thing, the trannies have to be given DDs and I doubt that is happening...

[TwelveInchPianist]

"Are the trannies getting DDs?"

Wait.. male of female? Either way, why shouldn't they get to pick the size?

And I'm pretty sure the guys that refused the vax didn't get court-martials or punitive discharges.

[Bruce Hayden]

A Dishonorable Discharge IS punitive. And sticks with you for the rest of your life. For, as was pointed out, refusing to allow themselves to be jabbed with a relatively untested, dangerous, ineffective, novel and experimental toxin called a “vaccine”.

There was never a legitimate medical reason to administer these “vaccines” to any service members, and plenty of reasons not to, esp given the age and fitness of the bulk of the service members. Their chances of dying from the virus were less than 1/100,000 for most, and less than 1/1,000,000 for the youngest. The only service members with any age related risk whatsoever were flag ranks. And, due to the narrowness of the “vaccines” (a mere 2 proteins, very quickly obsolete as a result), they very likely detracted, and didn’t help, in obtaining herd immunity (which very likely would have been more effective if we had limited the jab to those over 60, and let everyone else achieve it through natural immunity).

[TwelveInchPianist]

Which servicemembers got courts-martial/Dishonorable
Discharges for refusing the vaccine?

[Abdul Abulbul Amir]

Bad Conduct Discharge is not a felony equivalent.

[Bruce Hayden]

Whoops - Other than Honorable Discharges, which still affect you for the rest of your lives.

[TwelveInchPianist]

Certainly true, but it's not a punitive discharge, which is all my comment claimed.

[Roger S]

Going transgender also sticks with you.

[con_fuse9]

1) It was tested
2) It was effective against the initial strain
3) The danger of getting the vacine vs. not getting and endangering everyone else in the unit was minimal (insignificantly small).

They only refused the jab because they listened to the medical experts on social media.

As for your contention that the vacines were not effective. 2021, starting in about March, was when the death rates (and more importantly, the hospitalization rates) started to go down.... right about the time vaccines became available.
Not only that, by August 90% of those dying were unvaccinated.
Areas of the country that were told not to get vaccinated - like Florida had surges in death rates that put COVID ahead of heart disease and cancer combined. 200-300 death a day for Florida when NY, the hot spot without vaccines, was experiencing 10-20 deaths per day. Florida actually passed NY in total deaths thanks to a lack of vaccinated people. Florida didn't hit 50% vaccinated till August (and by then it was too late). Blue states, like NY were 80% with at least one shot and 65% with 2.

When you are on an aircraft carrier, what percentage of the crew would you allow to get COVID? Normally, they only have room for 1% or so of the crew (they can expand to more for battle casualties - not sure if they can continue flight operations.)

[neurodoc]

Hey, are you here to squelch the fun with facts and fun? That won't make you popular with the MAGAnuts, most of whom are non-lawyers and all of whom are non-physicians, but all of whom are strongly opinionated.

[SRG2]

Antivaxxers don't need any steenkin' facts. They take comfort in their malign stupidity and willful ignorance, and probably approve of snake handling. hallelujah!

[Joe_dallas]

Confuse9 - Covid case rates declined sharply in march of 2021 due the natural and normal seasonal decline. The decline was very consistent with almost every prior respiratory virus.

Numerous other problems with your analysis.

[neurodoc]

Same response to you as to "Dr." (not medical! education) Ed2 above, who is so manifestly ignorant about vaccines. What basis do you have for your foolish claims about the "dangerousness" of the COVID vaccine?

And as for your foolish claim that "there was never a legitimate medical reason to administer these 'vaccines' to any service members," do you think there is good reason for the military to want to avoid the incapacitation of a substantial number of service members in a group like a ship's crew as did affect an aircraft carrier in the Pacific?

[damikesc]

The vaccine did not avoid that. Ever.

[Joe_dallas]

Bruce you are correct - the risk for the democraphic sub group of military personnel was near zero. Further, there was emerging data at the time that the vax would impair the development of a broader more effective immunity. The vax requirement for the military was based on a combination of fear and poor understanding of the medical science.

Best example of how bad the experts have been with the medical science is a comment at my high school reunion from an "infectious disease expert " at a major Southern CA university / hospital who stated that without masking there would have been 2m US deaths instead of the 1m deaths and there would have been 300k-400k childrens deaths. That statement came for an "expert". Much of the commentary is coming from similar flawed logic.

[Brett Bellmore]

" The vax requirement for the military was based on a combination of fear and poor understanding of the medical science. "

I think a lot of it was just a determination to force as many people as possible to get vaccinated, and, hey, these are people we can really apply a lot of force to!

[Joe_dallas]

Brett - There is also an inane belief that the vax was more effective than reality, partly based on flawed data.

Approx 80% -85% of the deaths were in the 65+ age group, which that 65+ age group was about 85% vaxed. Yet the decline in total deaths followed historical patterns with other pandemics. If the vax was truely effective, the death rates in comparable months would have been 20%-30% of the prior year comparable months instead of the 60% range which falls in the middle of the historical range.

[Brett Bellmore]

Here are the numbers I've found.

You're even understating it. Total deaths were 1,134,641.

50-64 years were 18% of that
65-74 were 22% of that
75-84 were 26% of that
85 and higher were 27% of that. (Though they're only 1.9% of the population!
Everybody below 50 was 7% of that.

This wasn't the Spanish flu, that took people in the prime of their lives. Covid only killed people who had one foot in the grave and the other on a banana peel.

[tim6842]

Correct. None of them got DDs. They all got General (Under Honorable Conditions) or Honorable discharges, pursuant to a requirement in the FY 2021 NDAA

[Michael Ejercito]

The only way they could have gotten DD's is by a sentence imposed by general court-martial.

[Dr. Ed 2]

OK, it was the Mass State Police that gave DDs.
Military gave OTH -- Other Than Honorable.

https://www.nationalsecuritylawfirm.com/discharge-upgrades-reinstatement-and-backpay-for-military-service-members-discharged-for-covid-19-vaccine-refusals/

[neurodoc]

Why, pray tell, do you refer to a "COVID toxin" and refuse to call it a "vaccine"? How does it fail to meet the definition of a vaccine? Is there not a substance that which elicits an immunologic response with an anamnestic response upon exposure to the virus and afford protection against the virus? What are its toxic properties? I trust you aren't speaking out of pure ignorance, though it sure sounds like you are. And do be so good if you will to cite the scientific sources and/or authorities you rely on. (Not RFK Jr. who bears such great responsibility for morbidity and mortality as a consequence of his outrageous charlatanism.)

[Vryedni]

I trust you aren't speaking out of pure ignorance

Why in the world would you trust that? Are you new here? (That was rhetorical. I know you're not.)

[David Nieporent]

they were kicked out with Dishonorable Discharges

Is this as true as everything else you say? (Yes, yes, it is. Nobody can be "kicked out with dishonorable discharges." They would have to be court martialed for that.)

[John Rohan]

Most likely they were considered "other than honorable" discharges.

[MollyGodiva]

Bigotry and hate win again.

[Magnus Pilatus, MBA, MD, JD, PhDx2]

We're on the wrong side of history! People with mental illnesses and under chronic medication ALWAYS served on the front lines!!

[Michael Ejercito]

So they were allowed to serve in George Washington's time?

[Sarcastr0]

Yeah no bigotry or hate back then.

[Z Crazy]

Let me make this clear.

It's unethical and immoral to exclude people from military service for something thats not their fault.

It would have been wrong for George Washington to exclude trannies from military service.

It is wrong for Donald Trump to exclude trannies from military service.

Here's the thing though. The President is commander-in-chief, not because of a law passed by Congress, but by the Constitution itself.

All troops exercise the authority of the President, even buck privates who clean toilets.

And because they exercise the authority of the President, the Constitution allows the President to forbid them from carrying out his authority for any reason whatsoever.

Maybe it shouldn't be this way.

Or maybe we have to let the President do the wrong thing to enable the President to do the right thing.

But the President has the constitutional authority to exclude trannies from exercising military authority.

[neurodoc]

Given the unbounded discretion you believe POTUS has, could he decide that Muslims shouldn't be allowed to serve, or do you think his discretion isn't quite that limitless? (Z Crazy, you aren't a lawyer, are you?)

[Michael Ejercito]

That is a good question.

It would depend on how deeply rooted it is for Congress to restrain presidential authority over removal of troops from military service.

If it turns out that Congress has customarily restrained such authority since before the Constitution was ratified, it would be an exercise of the power of government over the land and naval forces assumed to be proper for over 248 years Brown Shoe Co. v. United States, 370 U.S. 294, 307 (1962) and should not be disregarded. See also Washington v. Glucksberg 521 U.S. 702, 721 (1997) (noting that history and tradition detyermine the scope and nature of fundamental rights) , quoted in Dobbs v. Jackson Women's Health Organization, slip op. at 5 (June 24, 2022)

[Brett Bellmore]

"It's unethical and immoral to exclude people from military service for something thats not their fault."

That's just stupid. All sorts of medical and psychological conditions that aren't somebody's fault will properly preclude military service.

[Swede425]

No kidding.
The colorblind can't be pilots in the Army.
Not their fault, and totally unfair!
In 2019 I worked as an operations officer in a National Guard State Surgeon's office. It was only supposed to be temporary (6 months) while we reviewed and updated processes and shelved "war plans" for dealing with emergencies and contingencies.
For most of that year and part of 2020 I watched as 4 tranny soldiers got handheld through the process of joining the Army. Less than 3 years later all 4 were out or in the process of getting out because they couldn't handle it. The Army doesn't exist to be fair. It exists to kill people and break things. Lots of people are disqualified for health/mental health reasons. This was a stupid experiment forced on the military by people who don't take national defense seriously or are, in fact, hostile to the concept.
Putting these mentally ill people out of the military is the right and only thing to do.

[damikesc]

Do you want a list of disqualifying factors for military service?

[Krayt]

It's been pointed out they get a better shake here in this country, in spite of everything, than most other places, and so defend it well. You are undermining their effort. I remember Sam Nunn, I think it was, taking cameras on a tour of a submarine when Clinton was thinking about integrating gay people into the military. Oh, look, they share bunks in shifts! Your kid may go lay in a bunk a gay guy just got out of! Oh noes!

[damikesc]

Yes, we need to fund absurd treatments for a mental disorder for people who simply cannot ever be deployed. They are a 100% net drain on the military. All downside, no upside.

[Kleppe]

There's nothing bigoted or hateful about having and enforcing standards. People with untreated mental illness don't belong in the armed forces.

[dirc]

Transgender service members are nondeployable because of their special medical needs (such as hormone shots).

The military requires parents have a child care plan in case of deployment. Parents who cannot identify someone who would take care of their children are nondeployable.

Anyone who is nondeployable for 12 consecutive months is separated from the service. It does not matter if they are nondeployable for a family reason or a medical reason.

The policy is not rooted in bigotry or hatred. It applies the same standard (personnel must be deployable) to all military personnel.

[neurodoc]

"because of their special medical needs (such as hormone shots)."

No service members require medicine on a regular basis without duty limitations? Gee, I didn't know that and I have served on Active Duty as a Medical Corps officer.

[John Rohan]

It's both medicine and care and their availablitity in an "austere environment" like deployment. That's the reason diabetics who need insulin can't serve, because insulin requires constant refrigeration which can't be guaranteed in a wartime environment.

[tim6842]

Will be interested to see what happens with this case. Seems like it lies at the intersection of Parker v. Levy (which recognizes that the military is a separate society that requires its own readiness standards) vs. a policy explicitly motivated by animus (the EO singles out trans Soldiers as being unethical and liars about their identity).

Based on this procedural ruling I think it will be upheld but I could be wrong.

[Michael Ejercito]

The history of banning transgendered persons from military service would be relevant.

Some sources indicate that they were forbidden from openly serving in the military until around President Obama's second term. If so, just as the Supreme Court should not "disregard the implications of an exercise of judicial authority assumed to be proper for over 40 years" Brown Shoe Co. v. United States, 370 U.S. 294, 307 (1962), neither should it disregard the implications of the exercise of military authority assumed to be proper for 248 years.