Trump travel ban on shaky ground

He claims the administration could seek a rehearing in the 9th Circuit “not if, but when they lose,” petition for a Supreme Court review of the 4th Circuit’s decision now, ask the Supreme Court for an emergency stay of that ruling or ask concurrently for a stay and for the court to take its case.

But if the court were to take the government’s case, liberals say it’s going to be tough to persuade Justice Anthony Kennedy — the high court’s regular swing voter — to rule in Trump’s favor.

Carl Tobias, a professor of law at the University of Richmond School of Law, noted that the 4th Circuit used Kennedy’s concurring opinion in a 2015 immigration case to defend its 10-3 decision to break with court precedent and consider Trump’s campaign statements about banning all Muslims in finding the order discriminatory.

The majority said Kennedy explained in Kerry v. Din that when a plaintiff makes “an affirmative showing of bad faith” that is “plausibly alleged with sufficient particularity,” courts may “look behind” the challenged action to assess its “facially legitimate” justification.