'Misunderstood the assignment': Supreme Court justice slams colleagues in scathing dissent
U.S. Supreme Court Justice Ketanji Brown Jackson issued a scathing dissent after the court issued a ruling on Thursday that she described as a "back-of-the-napkin" approach to solving the problem at hand.
In a 6-3 ruling, the high court reversed a lower court order that blocked President Donald Trump's executive order mandating transgender people only use their gender assigned at birth on their passports.
"As is becoming routine, the Government seeks an emergency stay of a District Court’s preliminary injunction pending appeal. As is also becoming routine, this Court misunderstands the assignment," wrote Jackson in the dissent. "Our task in deciding stay applications is not simply to make a 'back-of-the-napkin assessment of which party has the better legal argument.'"
"Rather, the actual nub of the project (if we choose to involve ourselves in the matter at all) is to fairly determine whether the applicant’s showing justifies our extraordinary intervention. To do this, we consider not only the applicant’s likelihood of success on the merits, but also whether the applicant will suffer irreparable harm absent emergency intervention, as well as the relative harm to the parties and the public interest in the grant or denial of a stay," she continued.
"Here, the balance-of-the-equities factor requires weighing the harm to the Government from not being able to proceed immediately with its allegedly unlawful policy against the harm to the individuals who would be subjected to that policy," Jackson explained, citing the court examples. "Balancing the equities is an important part of the analysis because it avoids unnecessary real-world injury to people with colorable legal claims."
She explained that for the past 33 years, transgender Americans have received passports with the sex markers that match their genders. It's the Trump administration that changed the decades-long precedent of the option for citizens who could provide a doctor's certification of gender reassignment.
"The State Department’s sex-marker policies have thus long demonstrated that what is important for identification purposes is the bearer’s gender identity today," Jackson emphasized.
Now, trans people will be subject to additional questioning and probing if their sex on the passport doesn't match their gender. All because of a decision by President Donald Trump, she said.
"Why? Because two days earlier, on January 20, President Trump issued Executive Order No. 14168, characterizing transgender identity as 'false' and 'corrosive' to American society," she wrote. "The order asserted that 'the policy of the United States' is 'to recognize two sexes, male and female,' which it defined based on the sex assigned 'at conception.'"