Making Sense of Today’s Supreme Court Travel Ban Decision

There are a few surprises in today’s ruling (http://bit.ly/2u8xe3V), which overturned parts of the lower courts’ injunctions against President Trump’s Travel Bans.  These are, in my view: 1) the decision to modify the injunctions now, rather than simply waiting until the case is heard in the fall, 2) the decision to impose a litigation-friendly middle ground in the meantime, despite the fact that the case may soon be moot, and 3) at least three justices are prepared to back President Trump when the cases are heard in the fall, showing a new (and entirely predictable) core of the conservative right on the court.

But first some context.  Today’s “per curiam” decision (which means opinion of the court as a whole but not authored by any particular justice) was the result of two separate cases arising from different parts of the country.  One was from the West Coast (“the Ninth Circuit” one of the country’s most liberal appellate courts); the other from the Mid-Atlantic of the East Coast (the “Fourth Circuit” one of the country’s most conservative appellate courts).  The two federal appellate courts had agreed in striking down the Trump Administration’s Travel Bans, and they did so in particularly strong language.  For example, the conservative Fourth Circuit held that the “Muslim ban drips with religious intolerance, animus, and discrimination.”   Wow.  That is gut-punching language from the guys in robes, who don’t often speak to Presidents that way.

So why, if the two circuits agreed that the Muslim ban was unconstitutional, did the Supreme Court agree to hear the case at all?  After all, where there is no “split between the circuits” [lower appellate courts], the Supreme Court often declines to take a case.  The answer:  because they can’t help themselves.  The Court can take any case it wants so long as it has jurisdiction, and in cases involving major public policy matters, it often decides to grant review even where the lower courts have agreed.  So no one should be surprised that they chose to take a look.

What should be surprising, though, is what they chose to do before even hearing the case.  In the lower court opinions, the courts had granted “injunctions” against enforcement of the Muslim Ban or Travel Ban.  That is, they found that the people or states challenging the bans had shown both a high probability of success in their claims and that irreparable injury would result if the ban went into effect.  So they said the Executive Branch is “enjoined” (stopped) from enforcing the ban.  The Supreme Court could have simply left those injunctions in place, pending its own full review of the case, which is now set for the fall.

Instead, the Court chose to modify the injunctions, allowing part of the Ban to be enforced and part of it not to be enforced.  Specifically, the Court said that anyone from the affected countries with a good faith relationship to the United States may enter, but all others may be excluded.  Expect a lot of happy clucking from the President’s Twitter account, as this will be spun as a more-than-partial victory for the Trump Administration.

Between now and the fall, immigration authorities will now have to determine, on a case-by-case basis, who has a “good faith relationship” to this country.  Expect, as three dissenting justices predicted, some messy litigation in the meantime.  Why invite more chaos this summer, when things on this front had finally started to quiet down?  It’s a puzzling question, a signal that the Court wants to find a way to recognize Executive Branch authority over immigration matters — while implicitly recognizing that there are limits to that authority based on Constitutional principles.

Fine, but why not just wait to articulate that balance when you rule in the fall?  It seems like an unusual step to take, particularly when … the case may be moot by then anyway.  Remember that the Travel Ban was originally proposed as a freeze on entry for a 90 day period during which the Executive Branch could “study” the issue and propose more specific rules.  O.K., so we’ve now had five months, with a few more to go before the case is fully reviewed in the fall.  So by the time the Court gets the case fully briefed, the Executive will have had about eight months to “study” the issue and replace the Travel Ban with something more coherent.  Sure enough, the Court in its order suggested that the first issue it wants briefed is whether the case will be moot by the time the justices hear argument.

Maybe the justices are signaling that they think the case will be moot, and if so, they’d like to do some rough line-drawing in the meantime.  Those of you with your antennae up about widespread hypocrisy over “judges who legislate” may want to remember this case — the order was either constitutional or not; there was no need to tweak it a bit here or there.

Finally, three justices wrote separately in a signed separate opinion agreeing with part of the decision but disagreeing in part.  The three were Thomas, Alito, and Gorsuch, who wrote to say they would have overturned the injunctions completely and are prepared to find the Travel Ban lawful.  That’s right, folks, a core hard-right triumvirate is saying that despite a sloppily-constructed Travel Ban “dripp[ing] with religious intolerance, animus, and discrimination,” these three justices are prepared to say “Fine With Us.”  So much for the hope that Justice Gorsuch would be a kinder, gentler version of the man he replaced.

There was once a time when the Supreme Court was able to speak with greater clarity and unanimity — as if to say we are above politics.  Those days seem sadly behind us for the indefinite future.  (Just ask Merrick Garland.)  With the Court more politicized than at any time in our lifetimes, we can expect them to be unanimous on precious little.  So there will be, it appears, no ringing denunciation of the Trump Administration’s Travel Ban coming from the Supreme Court, as there was from both ends of the spectrum of the lower appellate courts.  No, the Court is just too ideological for that it seems.  What we will get, one can fairly predict, is procedural messiness over legal technicalities like mootness, and substantial disagreement if the substance is addressed at all.

If so, the Court’s current tinkering may presage a lost opportunity to do what the lower courts did so well:  speak the truth about unambiguous racism and intolerance.