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    Ann Rostow: Bad Things Afoot

    By Ann Rostow–

    Bad Things Afoot

    Last January, the Supreme Court struck down two injunctions that had been protecting transgender military recruits from Trump’s ban on transgender service. That move appeared to leave one injunction still in place, while a fourth injunction had already been undermined by a negative ruling from a federal appellate panel in D.C. Now, following the lead of the justices, the third injunction has been struck by a federal court in Maryland. Meanwhile, the full Court of Appeals for the District of Columbia has been asked to consider the status of Trump’s ban, even though the High Court has spoken.

    Got that? If not, just know that we’ve been able to forestall the transgender ban for nearly two years, but we seem to have run out of options for now. According to a Defense Department memo, the ban will take effect April 12, and while the lawsuits will continue, Trump and company will be allowed to enforce the ban during what will no doubt be lengthy trials and tribulations ahead. The ban, in its current form, will prohibit transgender soldiers and sailors from joining the military unless they revert to their birth gender. Trans-men and women who are currently serving are allowed to stay as they are, although I’m not completely sure what other restrictions they might face. 

    Finally, I’m not clear on the deal with the D.C. Circuit. Don’t they have to follow the Supreme Court’s guidance? I’m glad there seems to be at least one more hurdle in Trump’s path here, but I’m confused by it, that’s all. And why is the Defense Department in a position to announce start dates and so forth if the matter of an injunction is still pending before an appellate court? 

    When I don’t completely understand all of the details in a news story, I always fear that I may have missed something obvious or failed to grasp some essential point that will make me look dumb, sloppy or lazy in the future. I try to sort things out but eventually I am simply obliged to live with the fear. (Sing with me: Serve a paper and sue me, sue me, what can you do me? I love you.)

    Conference Calls

    In other Supreme Court news, another conference has come and gone and once again our big petitions remain on the sidelines, still pending and up for discussion when the next conference comes along. Conferences, as you probably know, are those weekly or fortnightly meetings where the justices sit around and decide whether or not to take up cases. No one else is allowed in the room, and the newest justice takes notes and answers the door when someone knocks. 

    This week, however, I was startled to encounter a bunch of headlines about how the Supreme Court had decided not to take review of a religious freedom case out of Hawaii, where a Christian bed and breakfast owner had declined to welcome two lesbian customers in violation of anti-discrimination law in the Expensive Island State. That case had risen through a couple of state courts, which had ruled in favor of the two women. After the Hawaii Supreme Court declined to take the case, one of the lawyers appealed to the U.S. Supreme Court, and just received a thumbs down. The case rang a faint bell in my head but it was not on my short list of High Court petitions.

    Ooops. This is what I was talking about in the previous section. How could I not know that a significant GLBT issue was being presented to the justices? I have no problem blathering on about our Title VII cases, the Sweet Cakes by Melissa case, the possible reappearance of the homophobic flower lady from Washington, the transgender schools case and so forth. I assumed that all GLBT legal matters were contained in my vast reservoir of community knowledge, and certainly all matters within the High Court’s purview, but apparently this is not the case. Disturbing!

    Oh Brave New World, That Has Such People In’t

    And speaking of the Supreme Court, trust Kate Kendell, the former head of the National Center for Lesbian Rights, to embroil herself in what has to be one of the most astonishing new areas of progressive activism we’ve yet to encounter in these turbulent times. Kendell is someone I greatly admire as a leader. If she tells me we should all strip down naked, do a couple of shots and run screaming around the halls of Congress waving miniature rainbow flags, I’d be there. Cool, Kate, I’d say. I’m sure you know best.

    This time, Kate’s telling us to pack the Supreme Court, taking charge of a group called “Pack the Courts,” which aims to add four more justices to the High Court bench. Prior to that, of course, the plan would demand that Democrats win the White House, maintain the House majority and win control of the Senate. Personally, I’d think we would need a super majority, but what do I know? I didn’t even track the Hawaii bed and breakfast case.

    I like to play a little game, which is to imagine what I would think of an idea if the other party offered it up. For example, I was opposed to George Bush’s Part Four Medicare expansion (too expensive!) until I wondered what I’d think if a Democrat authored it (the least we can do for struggling seniors). I thought our intervention in Libya was smart policy by Obama (America has a role to play in humanitarian crises), but would have decried it from a Republican (why should we be the world’s policeman)? You get the picture and let’s just say that if I heard the Koch brothers were raising money for a “pack the court” push, I’d be outraged. Even if I heard AOC was in favor, I’d give her a mental “tsk tsk” and think she’s biting off more than she can chew. 

    But this is Kate! Eric Holder and other top Democrats also support the notion, which is in part based on the disturbing partisan manipulations of the last few years. I’m sure you haven’t forgotten that Mitch McConnell stole a Supreme Court seat from the Democrats, and subsequently used the nuclear option, or whatever they called it, to drop the bar for confirmation to a bare majority. Gorsuch got 54 votes in the Senate; Kavanaugh won confirmation by a 50–48 margin. Neither man would have survived under the traditional rules.

    It’s time for Democrats to get tough for once and take back some of the ground we’ve lost, our friends urge. After all, there’s nothing in the Constitution that requires a nine-person Court, and indeed, the numbers have changed a few times in the past. If we don’t act, we’ll be faced with regressive opinions as far as the eye can see, maybe decades. What good is a green new deal, or an Equality Act, if the High Court overturns whatever we manage to sign into law?

    On the other hand, I look back at some of the most consequential Supreme Court decisions, and wonder how the country would have reacted if the High Court was not seen as a politically transcendent body. We needed the national guard to enforce school desegregation, but we got through it. We went back to the High Court a number of times to support marriage equality. We Democrats stayed calm and carried on after George Bush was installed on what looked like a pure party-line vote. How would decisions like these have played out if the High Court lacked credibility? 

    Won’t a packed Court have this profound problem from the start? Or has the Court already lost any claim to impartiality? And then we have Mayor Pete, my new favorite presidential contender, who favors a 15-member Court with five members picked by Democrats, five by Republicans and the other five picked by those ten justices. I think his plan also involves some kind of term limit, and it also seems unfair to the one third of the American electorate that considers itself Independent. But it’s still interesting. Don’t get me started on Elizabeth Warren and the intriguing idea of nine-member appellate panels.  

    I guess my final objection is that now I have yet another complicated thing to research and investigate. Oh, and how about the branding problem? “Court packing” is a pejorative phrase, summoning images of a desperate Depression-era president trying and failing to forestall opposition to his economic recovery plans. Can we not find a euphemism? Or must we be bold?

    Laughter, the Best Medicine!

    The quote from The Tempest that I used as a subhead earlier has reminded me of a small recent incident, a tweet, that has struck me as incredibly funny for no reason. It begins with the time that Trump referred to Apple CEO Tim Cook as “Tim Apple.” That was a couple of weeks ago, and although it was obviously one of his frequent mental lapses, he later insisted first that he actually said “Tim Cook, Apple,” and once video proved that was not the case, he inanely claimed that he called him “Tim Apple” in order to “save time and words.”

    Many Twitter replies ensued, including one person who suggested that Trump could save even more time and words if he called him: “T’Apple.” 

    Okay, so it’s amusing. But when I first read this, I was laughing too hard to read it to my wife. Tears were coming out of my eyes, honestly, and I was gasping in my effort to get through it. I’m laughing now and this is the tenth time I’ve revisited the hilarity. At the same time, I can see that it’s not that funny, right? Why do some things hit a person like a comic sledgehammer? Are any of you readers out there in hysterics right now? Or are you wondering what the hell I’m talking about?

    Gay Catholic Cat in Frying Pan Dustup

    Let’s see what else is new. There was a Catholic school outside Kansas City that denied admission to a kindergarten child because the child’s parents were lesbians. Other parents wondered if any of the other applicants had divorced parents, non-Catholic parents, or parents who ate meat on Friday, because come on people. 

    I have written down “Mostik,” for reasons unclear. Was that a person? A place? Oh, now I remember. (Thanks, Google.) Mostik is an orange cat who lives on the site of a bridge being constructed between Crimea and Russia, and he is adored by all of the construction workers. No, the feline is not gay. Does everything have to be gay? Can we not have a plain cat story now and again?

    Then we have a gay porn star who assaulted someone with a frying pan. This guy, Nicholas Gruber, is a 20-something Manhattan man who once had an affair with Calvin Klein, 76. I’m always blown away by some of you gay men with your Old Testament-like age gaps. That scene aside, Gruber and a buddy attacked a 33-year-old man with said frying pan, sending him to the hospital with serious injuries. I read this story on the New York Daily News website, which included a link to: “Moooove over! Cops corral cow on Major Deegan expressway!” Only in New York!

    We have a goat elected mayor of Fair Haven, Vermont. I think the population is about 20, and the town itself sounds like the Star Trek Hologram program where Captain Janeway fell in love with the Irish bartender. 

    And finally, we have just introduced the Equality Act in the House, where it heads to various committees and I’m assuming will eventually pass. The Equality Act adds sexual orientation and gender identity to a range of federal civil rights laws, including the workplace protections in Title VII of the Civil Rights Act of 1964. In the Senate, all of the Democrats and the two Independents have come out in favor of this, our signature bill, except for West Virginia’s Joe Manchin, who came up with some incoherent balderdash about local officials needing more guidance. Go jump in a coal mine, Joe!