The Supreme Court's Artful Dodge

[Rhiannon12866]

A pragmatic ruling on Trump’s travel ban preserves the peace for now—though Gorsuch is willing to stir the pot.

The Supreme Court’s announcement on President Donald Trump’s travel ban Monday morning gave each side something to point to as a temporary victory. The Court will hear arguments this fall on the merits of Trump’s executive order, and it split the baby on the question of what to do in the meantime. Until the Court renders a final decision, Trump’s entry ban will remain suspended in many cases, but go into effect for people who don’t have bona fide family, professional, and perhaps other similar reasons for coming into the U.S. Trump took a victory lap on Twitter – “Very grateful for the 9-O decision from the U. S. Supreme Court. We must keep America SAFE!" – but if he’d read the decision a little more carefully, it would be clear that the victory is only partial and only temporary. In fact, temporary victories might be the only kind anyone ever wins in this case.

The Court did agree to hear the case, but it also all but guaranteed that it will never render a decision on the merits. That’s because of the timing of the hearing. It won’t happen until the Court’s next session, in October. By then much of the order will have expired already: The order has a 90-day ban on nationals of six Middle Eastern countries entering the United States, a 120-day ban on the entry of any refugees, and a fiscal year 2017 cap on the total number of refugees. The Court started those clocks ticking today by letting the ban go into partial effect; by the time of the October hearing, both the fiscal year and the 90-day ban will be over, and only the 120-day refugee ban still in effect. Even that issue will become moot shortly thereafter, almost surely before the Justices get around to writing opinions. It's settled doctrine that federal courts won't decide moot issues, and every Justice knows it. In short, it seems that the Court agreed to hear a case that it plans never to decide.

Clearly the Court knows what is happening. Counting days on a calendar is not terribly difficult, not even for Supreme Court Justices. And if the Court wanted to decide the case before it became moot, it could schedule a morning of argument anytime in the next few weeks. Both sides’ lawyers are ready to go, and nothing in the Constitution requires the Court to take a long summer vacation. So the question is why the Court chose this evasive maneuver. And plausible explanations are easy to come by.

If the Court rules on the merits of the order, it must either endorse an ugly fit of executive-branch bigotry or else risk direct confrontation with an impulsive President who seems happy to go to war with federal judges. By splitting the difference, the Court prevents some of the worst human costs of the order, avoids committing itself to any ultimate view of the case, and contrives to let the whole affair end with a whimper. It’s a pragmatic institutionalist move, not a bold assertion of legal principles. But the current Court has a strong complement of pragmatists and institutionalists, led by the Chief Justice himself. As a young lawyer, John Roberts saucily quipped that only Justices and schoolchildren take the whole summer off; as Chief Justice, he knows the utility of being seasonally unavailable. (“Your case is very important to us. Please hold, and we’ll hear you out as soon as we’re back, a little more than ninety days from now.”)


More: http://www.politico.com/magazine/story/2017/06/26/the-supreme-courts-artful-dodge-215310

[regnaD kciN]

1. This assumes the order will just quietly run out before October...

Personally, I'm guessing that Trump extends it indefinitely before then. They won't be able to dodge it once that happens -- and it sounds like there are already three sure votes to uphold it.

[Rhiannon12866]

2. Yup, Trump knew what he was doing when he chose Gorsuch

And the Democrats knew what he was about when they filibustered. Tonight on MSNBC they said he most often agrees with Justice Thomas.

[Rhiannon12866]

4. The thing that sends me over the edge is that replacement for Scalia should have been Obama's choice

And I still can't believe that the Republicans got away with their ridiculous justification for rejecting it.

Welcome to DU, GotHillsback! How'd you come up with such a unique user name?