Over the last several weeks, the Supreme Court has issued a number of important rulings on its “shadow docket” — cases that are heard on motions to grant a stay or for other immediate relief without oral argument and usually without written opinions by the justices. In three of these rulings, Supreme Court Justice Brett Kavanaugh has more than lived up to President Donald Trump’s expectations that he will be far to the right on the court, including on crucial issues for the Trump administration.
In January, the court voted 5-4 to dissolve preliminary injunctions that had halted the Trump ban on transgender service members as the lawsuit against the ban moved forward. As a result, while the litigation continues over the next year or so, the military can prevent transgender individuals from enlisting and “courageous transgender service members will face discharges.” As one veteran put it, in addition to the hardship and discrimination against transgender individuals, the court’s 5-4 ruling “has made it harder for every commander in the military,” since each will “have to look at some of the best troops we have and kick them out for being honest about who they are.”
Kavanaugh cast one of the deciding votes to lift the injunction against the ban. This ruling, as well as the final vote on the ban in the future, could well have rejected Trump’s discrimination against transgender individuals if Justice Kennedy were still on the court. But as many have pointed out, Justice Kavanaugh has “evinced no interest in defending” the LGBTQ community’s rights or their dignity. Trump’s other Supreme Court nominee, Neil Gorsuch, also voted to dissolve the injunction.
Kavanaugh and Gorsuch were part of the 5-4 majority again in February, when the court voted 5-4 to reverse an Eleventh Circuit Court of Appeals ruling that had temporarily stayed an execution because of a “powerful” claim that prison officials had violated the prisoner’s religious liberty. The court of appeals was concerned that Alabama refused to allow a Muslim prisoner to have an imam present to offer him religious guidance in his last moments, even though it allows that religious accommodation for Christian prisoners. Even though Kavanaugh has been called a “warrior for religious liberty” by conservatives, he voted against religious liberty in this case. As Justice Kagan wrote in a strong dissent joined by the court’s other moderate justices: