How the courts will view President Trump’s executive order on foreign travel has been the hot topic of discussion the past few weeks.
Well, we know how the 9th Circuit feels.
That court shredded the order in an opinion that was about as harsh as you’ll ever see from a judicial body that doesn’t include Antonin Scalia.
Trump was… unhappy.
And while the order was written so poorly that the administration is reportedly just going to scrap it and write a new one, it seems pretty clear that we’re eventually going to see a Trump immigration order on the docket of the Supreme Court. So what will they think of the so-called “Muslim ban”?
While progressives are still steaming over the Senate’s treatment of Merrick Garland, they can certainly be thankful for the current Court’s liberal quartet, who are about as consistent as can be. All four are likely to cite the Establishment clause as their reasoning for shooting down Trump’s order, subscribing to the idea that it qualifies as discrimination against Muslims. The government’s main argument is that the judiciary should give Trump deference on national security matters. The liberal wing of the Court will be very difficult to convince, particularly considering who currently sits in the Oval Office.
Holding the liberal wing would ensure that the order goes down if the case is decided before the arrival of Neil Gorsuch, as a 4-4 split would leave the 9th Circuit’s decision in place. It’s also possible that Gorsuch could be forced to recuse himself if he has to answer questions regarding the order during confirmation, although it seems unlikely the experienced judge would take such bait. So, if Gorsuch has donned his new robes, all eyes turn to Anthony Kennedy and Chief Justice John Roberts to provide the decisive votes in this case.
Chief Justice Roberts always has an eye towards his legacy; after all, it won’t be called the Kennedy Court or the Ginsburg Court. His dissent in Obergefell v. Hodges, the landmark case legalizing same-sex marriage nationwide, is a great example of this. Roberts is careful not to attack gay marriage on political or moral grounds, only saying that the majority lacked constitutional grounds for its ruling. The CJOTUS knows that the decisions the Court is remembered fondly for are those that are progressive. He may believe that Trump is destined for a dark place in the nation’s history books, and will be hesitant to grant a great deal of deference to such a figure. Plus, Roberts, a George W. Bush nominee, comes from an establishment, “country club” Republican background. It’s unlikely he appreciated the new commander in chief’s humiliation of Low Energy Jeb and Little Marco.
Kennedy, as usual, is an enigma. However, we get a big hint from his opinion in Boumediene v. Bush, which limited the Bush’ administrations authority over Guantanamo detainees. All the justices are wary of the excessive deference given to FDR in the infamous Korematsu v. United States. Like the Chief Justice, Kennedy is no Breitbart reader, himself. He, too, seems likely to at least limit portions of the order.
It’s possible Gorsuch could rule against the order, but it is unlikely from a judge who is, by all accounts, a rigid conservative. As for Samuel Alito and Clarence Thomas, they’re about as unlikely to rule with the Court’s liberals as Trump is to stop tweeting. Nevertheless, the President and his advisers should be quite worried about how their order will fare in the nation’s highest court, as they could be looking at an embarrassing 6-3 or 7-2 defeat. They definitely need to get to work on that rewrite.