Yesterday a federal appeals court found Trump’s March executive order to ban travel from six predominantly Muslim countries to be unconstitutional, saying it “drips with religious intolerance, animus and discrimination.” Attorney General Jeff Sessions almost immediately vowed to take the matter to the U.S. Supreme Court. So … what happens now, and what are the odds that the Supreme Court will uphold the lower court ruling?
Sessions offered no timetable for submitting the case to the Supreme Court, but he must file the appeal within 90 days, which would be between now and late August. Given the case load of the court, it will likely take close to two months before they decide whether or not to hear the case, and assuming they do decide to hear it, it would be late this year or early next year before they begin to hear arguments. There are some interesting twists here.
In order for the case to be heard, four justices must agree to hear it. Given that five of the nine justices are conservative-leaning and were put on the bench by republican presidents, and given the national attention this matter has received, it is likely, though by no means certain, that the court will hear the case. If they do not, however, then the ruling of the appeals court stands and there will be no travel ban. Though I do not expect this to happen, it would be the best solution in the opinion of this writer.
The first interesting twist is that the travel ban is a temporary ban, intended to last 90 days from the time it was issued. The order was signed on Monday, 06 March 2017, so technically the ban is set to expire on 04 June 2017, nine days from now. In other words, by the time the Supreme Court could even decide to hear the case, it would have already expired. I am fairly confident that it will be interpreted as beginning at whatever point it is actually implemented, but the argument could be made, I think, that it is a moot point since it already expired.
Although the court currently leans toward conservatism, that is not necessarily a predictor for how the justices will vote. The legal opinions I have read, as well as my own opinion, are mixed. I would like to think that the court will uphold the decision of the appeals court, as I think it was the right decision, but there is good reason to believe that they may not.
The appeals court ruled as they did based, not solely on the text of the executive order, but also taking into consideration Trump’s rhetoric against Muslims last year when he was campaigning. The courts that have ruled on the issue thus far have said that even though the text of the order does not mention Islam or Muslims, the intent is clear based on things Trump has said. I agree with that, from a purely logical standpoint, however, from a legal standpoint, it may not hold water.
The three judges who dissented in Thursday’s decision argued that the court should not look beyond the text of the executive order, and that is the key that will decide this case if the Supreme Court decides to hear it. I can see the reasoning here … can see both sides of this issue, actually. Lawyers wrote the executive order, making sure there was no mention of religion. However, Trump’s speech signals the actual intent of the order and I would like to see it considered. On the other hand, if the court allows what he said as a candidate to be a consideration, it sets a precedent and could open many cans of worms in future cases and rulings.
Another option I should mention is that lawyers for the Trump administration could seek the justices’ approval to put the travel ban in place on an emergency basis, in which case the justices would vote immediately, but the case would still need to be heard at a later date. If they should agree to allow the ban to take effect on an emergency basis, there is little doubt that they would uphold the policy when it came up later on. At any rate, it would be a moot point, as either way the 90-day period would have passed by that time.
I cannot predict with any degree of certainty what will happen at this point. My one final comment, however, is that Donald Trump and cohorts should be barred from any contact with the Supreme Court justices. Period. We have been privy to his bullying tactics, have seen how he has swayed certain members of Congress with threats and intimidation tactics. Although I believe the integrity of all nine justices is such that they would not allow themselves to fall prey to such techniques, it is simply better to avoid any appearance of the administration attempting to sway the court. Donald Trump cannot fire a justice, and has no real power over the court, but I simply do not trust him.
Although I have not always agreed with the decisions of the Supreme Court, I have almost always believed that the decisions were made with great thought, without political considerations, and I have tremendous respect for both the institution and the justices. I would like to be able to keep that respect.