No Clear Winner In Today’s Supreme Court Decision On The Travel Ban

And there’s no guarantee that the Court will ever rule on its constitutionality.
06/26/2017 01:51 pm ET Updated Jul 03, 2017

There is no clear winner or loser in Supreme Court’s decision today grant the Trump administration’s request for review of lower court rulings enjoining Trump’s travel ban barring the entry of foreign nationals from six majority-Muslim nations.

Let’s start with an attempt to describe the ruling in plain English.

The first issue before the Court was whether it would agree to review lower court decisions enjoining the Trump administration from enforcing its proposed travel ban. If the Court had declined to review the lower court rulings, the injunctions against the travel ban would have stayed in place. That would have been a clear victory for the opponents of the ban.

But the Court didn’t deny the administration’s request for review, it granted it. The Court agreed to hear the matter during its October term this year. Point Trump.

The next issue presented to the Court was what should be done in the interim, the period between today and the time the hearing is held several months from now. The options before the Court were (1) keep the injunctions in place, thus continuing to prohibit the Trump administration from enforcing the ban, (2) lift the injunctions, thus permitting the administration enforce the ban immediately, or (3) something in between.

The Court chose “something in between.”

Prior to the October hearing, the injunctions will remain in place, but only with regard to foreign nationals who have a “credible claim of a bona fide relationship with a person or entity in the United States.” Those individuals cannot be denied entry under the ban. But everybody else, meaning foreign nationals who have no such relationship to the United States, can be denied entry.

This “in between” ruling undoubtedly will become a national Rorschach test. Interpretations will say more about the preconceived notions of the interpreters than about the underlying decision. Both sides will declare victory.

A closer look at the decision, and how the Court reached it, suggests that nobody should declare victory just yet.

This “in between” ruling undoubtedly will become a national Rorschach test. Both sides will declare victory.

The decision is divided into two parts, a Per Curiam decision by the entire Court, and an opinion “concurring in part and dissenting in part” by the three most conservative Justices, Thomas, Alito and Gorsuch.

A Per Curiam decision is a ruling entered on behalf of the Court as a whole, not signed by any one Justice. The fact that it is issued on behalf of the entire Court, however, doesn’t necessarily mean that every Justice agrees with all aspects of the decision. Witness the separate opinion here by the three conservative Justices.

The Per Curiam opinion sets forth the decision of the Court. The decision in this case is somewhat unusual, more because of what it doesn’t say than because of what it says.

There are a number of key factors that a court will normally address in deciding whether or not to allow a preliminary injunction pending a final decision on the case. Two of those factors are “likelihood of success on the merits” and the balance of hardship between those seeking the injunction and those opposing it.

The Court’s Per Curiam opinion in this case, however, says absolutely nothing about which side is more likely to succeed on the merits. Rather, the decision is based entirely on the Court’s analysis of the balance of hardship. In a nutshell, the Court determined that the balance of hardship favored foreign nationals who have a legitimate relationship to the United States, but not foreign nationals who have no such relationship.

The lack of any discussion of likelihood of success on the merits diminishes the thrill of victory on each side’s partial victory, and takes the sting out of each side’s partial defeat.

Enter the partially-concurring and partially-dissenting opinion of Justices Thomas, Alito and Gorsuch. The “concurring” part is agreement that the Court should review whether the lower courts properly granted injunctions against the Ban. The “dissenting” part is that the three Justices would have stayed the lower court injunctions “in full,” meaning that pending a final decision they would allow the government to ban everybody from the six nations, including people with a legitimate relationship to the United States.

There’s nothing terribly surprising that these three Justices, occupying the far-right wing of the Court, would favor allowing the travel ban to be implemented in full. What is interesting about the opinion, however, is what it said about the merits of the underlying case.

Unlike the Per Curiam decision of the Court as a whole, the three conservative Justices did address the likelihood of success on the merits. Not surprisingly, given their positioning on the political spectrum, the three expressed their belief that the Trump administration is likely to win the case on the merits, and that the lower court injunctions will be reversed when the Supreme Court hears the case in October.

But in what is perhaps the single most interesting and significant sentence in the entire decision, the three conservative Justices said not only that they believed that the government was likely to succeed on the merits, but attributed that view to the entire Court as well. This, despite the fact that the Per Curiam decision was completely silent on which side was likely to succeed on the merits.

The three Justices said that they agree “with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits – that is, that the judgments below will be reversed.”

Of course, the Per Curiam decision said no such thing. The key word here is “implicit.” What the three conservative Justices are saying, in effect, is that since decisions on preliminary injunctions usually involve a determination on the likelihood of success on the merits, it must be implicit in the Per Curiam decision that they made such a determination here. Even though they didn’t say so.

This statement by the three Justices is, at best, a kind of snarky, “gotcha” shot at the rest of the Court for failing to address likelihood of success on the merits. At worst, it is an intentionally dishonest mischaracterization of the Per Curiam decision.

It is not necessarily implicit in that decision that the Court determined that the Government was likely to succeed on the merits. The Court was perfectly capable of addressing the merits if it wanted to, and the absence of any such discussion was clearly a deliberate choice made by the Court. It simply decided the case on other grounds.

Moreover, even if it were implicit in the Court’s decision that it had some view on likelihood of success, it is not at all clear what that view would have been. Prohibiting the ban on people who have a relationship to the United States would suggest a view that the Court viewed the challengers of the ban as likely to succeed. Allowing the ban on other foreign nations would suggest the opposite.

That’s why this decision is a Rorschach test. The three conservative judges chose to see an “implicit” tilt in favor of their position, but that reveals more about them than it does about the decision of the Court.

What do I see? I see a Court determined to duck this entire issue. The Court wants the issue to go away, and seems to have found a way to compel that outcome.

The Court’s decision includes substantial discussion about whether this case is “moot,” or likely to become moot prior to the scheduled hearing in October. As the Court noted, the travel ban was always presented as a temporary measure designed to give the Trump administration time to review the adequacy of the information provided by the six nations and to establish any needed enhanced vetting. The Court even directed the parties to address the issue of mootness in their pre-hearing legal briefs.

Taking the Trump administration at its word, by the time this case is heard in October, it will have had more than sufficient time to replace the admittedly temporary ban with whatever beefed up vetting procedures it deems appropriate. That, of course, will moot the issue of the ban, and relieve the Supreme Court from the burden of having to reach a decision on its constitutionality.

That leads me to believe that the most likely outcome here is that the Supreme Court will never issue a decision on the constitutionality of Trump’s travel ban. Instead, it will find that the issue has become moot with the passage of time.

If that happens, instead of another Rorschach test in which everybody sees something different, maybe we can all sit around the virtual national campfire, shrug our shoulders, and sing a chorus of “what the hell just happened?”

It’s Trumpland, after all.

Philip Rotner is a writer, attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated. Follow him on Twitter at @PhilipRotner.

CONVERSATIONS