Maybe the third time really is the charm. The Trump administration appears to have wooed two of the key Supreme Court justices in the defense of the third version of the “travel ban,” at least according to an Associated Press analysis of oral arguments today:
President Donald Trump appears likely to win his travel ban case at the Supreme Court.
Chief Justice John Roberts and Justice Anthony Kennedy both signaled support for the travel policy in arguments Wednesday at the high court. The ban’s challengers almost certainly need one of those two justices to strike down the ban on travelers from several mostly Muslim countries.
Justice Sonia Sotomayor was the most aggressive questioner of Solicitor General Noel Francisco in his defense of the Trump policy, and the three other liberal justices also raised questions about it.
Reuters’ analysts also got the sense that momentum for at least a 5-4 win was heading in the White House’s direction:
Conservative U.S. Supreme Court justices on Wednesday signaled they are likely to uphold President Donald Trump’s travel ban on people from several Muslim-majority countries, one of the most contentious policies of his presidency.
Both Chief Justice John Roberts and Justice Anthony Kennedy, a frequent swing vote on the nine-justice court, indicated they were unwilling to second-guess the president on the national security justifications for the policy.
Earlier, though, it didn’t appear that the court’s effective center was ready to let Francisco entirely off the hook. Francisco argued that Donald Trump’s comments as a candidate could not be used to challenge restrictions on entry to the US as national security was (a) primarily an executive branch responsibility, and (b) Trump had no official position in the executive when making those comments. Courts should judge the orders strictly on their own merits, Francisco argued.
Kennedy seemed skeptical. “You’re saying that everything he said is irrelevant?” he asked at one point. One has to wonder whether comments made by Trump after the election might complicate this argument, too, although none of the reporting so far mentions if that became an issue during today’s arguments.
Francisco’s argument on confining judicial oversight to a strictly textual basis resonated with at least one member of the conservative wing:
But conservative Justice Samuel Alito said during the argument that the text of Trump’s proclamation announcing the ban “does not look at all like a Muslim ban.”
A win at the Supreme Court would eliminate numerous attempts to enjoin the implementation of the executive order, which has been mainly allowed to take effect by the Supreme Court while the case was under review. That in itself indicated that the White House had a good chance to prevail, but it didn’t make it a slam dunk either. Neither does a good day at oral arguments, for that matter; it’s mostly a fool’s errand to predict outcomes from the Q&A that takes place in public. The real decisions get made in private conferences between the jurists, and anything’s possible.
When will we find out? Given that this looks (for now anyway) like a narrowly split decision and the late date in the session for the argument, the decision would most likely get published at the very end, sometime in mid-to-late June. Until then, it’s still anyone’s guess.
Update: Count NPR’s Nina Totenberg in the group, but she sees a silver lining for Trump opponents:
During arguments at the Supreme Court Wednesday, the justices seemed, by a narrow margin, to be leaning toward upholding the the third iteration of the Trump travel ban.
Justice Anthony Kennedy, who is often the deciding vote in close cases, for example, made repeated comments suggesting that the court does not usually second guess a president’s national-security decisions — even in the context of an immigration law that bans discrimination based on nationality.
If the court does decide in favor of the government in June, when a decision is expected, it would be a big win for one of the pillars of the president’s politics. It’s an issue that animates the bases of both parties, appealing to the grievance politics of Trump’s supporters — and outraging the moral sensibilities of the left. Between the travel ban and the proposed wall along the U.S.-Mexico border, that idea of exclusion is fueling the resistance to Trump and firing up liberals for this year’s midterms.
Meh. The “resistance” remains at top fueling at all times by Trump himself. A Trump win here would tend to undercut their claims that Trump acted lawlessly with the travel ban, while doing nothing for opponents’ arguments of underlying injustice in it. Trump scored an upset win in the 2016 election by “fueling” both of these issues, which should indicate that to the extent these “fuel” one side over the other, it’s not the progressives who come out on top.