The Supreme Court’s nine justices will decide the fate of President Trump’s “travel ban” — the executive order that’s been put on hold since its introduction in March, and which is descended from an earlier policy that inspired massive protests at airports around the country during the first week of his presidency. On Thursday, during its last closed-door conference meeting of the year, the court will decide how it’s going to decide that fate.
The court will take up the question of what do to with the lawsuits against the executive order, which has been blocked from going into effect by court rulings issued a day before it was scheduled to go into effect in mid-March.
Their decision will determine the course of immigration policy for the next several months — or longer.
And their options range from handing the administration a stunning and unprecedented victory, to giving it a quiet and ignominious defeat.
- The Court could allow the executive order to (finally) be implemented over the summer, banning residents of six majority-Muslim countries from entering the US for 90 days, and nearly all refugees from entering for 120 days.
- The justices could put off their own summer break in order to hear, and rule on, the travel-ban case themselves, as soon as possible.
- The Court could keep the travel ban on ice for several months by taking up the case this fall.
- The justices could put the travel ban on hold indefinitely, by refusing to even consider overturning rulings in the Fourth and Ninth Circuits that kept the ban from going into effect.
The Trump administration wants a decision as soon as possible. Obviously, they’re displeased with the lower courts’ rulings — which are, cumulatively, the kind of pummeling you’re more likely to see in a Road Runner cartoon, with the administration playing Wile E. Coyote — and hope to see them pushed aside.
But they may also be worried that the longer the travel ban is kept on hold, the weaker the argument for putting it in place at all is — especially if the administration has all summer to conduct the review of current visa “vetting” procedures that was supposed to be the justification for the travel ban to begin with.
The fight over the travel ban is exactly the sort of high-profile, politicized battle that’s characterized the Supreme Court in recent years. In theory, it’s not supposed to rule on “political questions”; in practice, the biggest policy decisions made by the federal government have a way of turning into constitutional issues. How the Supreme Court feels about the ban itself isn’t yet clear, or even relevant. The question is how it feels about its own role in the fight over the ban — and whether that leads the justices to try to get the case over with, or to proceed with deliberate caution.
The Supreme Court is really going down to the wire
The last day of the Supreme Court term — when it will release its last decisions and court orders before recessing for the summer — is Monday, June 26. But the crucial date in the travel ban cases is this Thursday, June 22nd.
By that point, the justices will have received all the briefs it’s asked for: from the federal government arguing for the travel ban to be put in place; from the advocacy groups who successfully put it on hold on the East Coast, in the Fourth Circuit case IRAP v. Trump (which is the case the justices are formally considering whether to hear), and from the states that successfully challenged the travel ban in the West Coast case Hawaii v. Trump (which the Supreme Court has asked for briefings on as well, indicating they’ll probably roll the two cases together); from supporters of the travel ban urging the Supreme Court to take up the cases, and opponents urging them to let the lower-court rulings stand and keep the ban on hold indefinitely.
That’s when the justices will meet, behind closed doors, to decide which cases they’re going to take on — and when they’re going to hear them. It’ll be the justices’ first chance to formally look at the travel-ban cases.
If the court wants to resolve the travel-ban cases at any time in the next several months, it’s going to have to agree to a schedule on Thursday.
The Supreme Court doesn’t tend to rush itself to put cases on the calendar. Traditionally, the cases it agrees to hear at the end of the term get put on the calendar for the following fall. And in recent years, the court hasn’t even made the decision about whether or not to hear a case immediately — they’ve often allowed a case (especially a major case) to hang around on the agenda for two or more conference meetings before voting on whether to grant certiorari.
They don’t have that luxury this time. If they aren’t ready to agree on a path forward by the end of Thursday’s meeting — unless they extend the term just to continue thinking about the travel ban cases — they won’t have another chance until the fall.
Given that the administration is hoping to have the travel ban in place over the summer (it even asked the Supreme Court to put all the lower-court rulings against the ban on hold while the justices look at the case), that would be an unfortunate development indeed.
The Court will almost certainly hear the travel-ban case. The question is when.
Typically, justices have two options when a case is appealed to the Supreme Court: grant certiorari and agree to hear the appeal, or deny certiorari and let the lower court ruling(s) stand. As long as at least four justices agree with the first option, the case is put on the docket.
But nothing in the travel-ban cases has been procedurally straightforward, and the fact that we’re coming up on the court’s summer recess has added additional wrinkles. So there are essentially five different scenarios that could come out of Thursday’s conference: four options the justices can decide to take, and what happens if they can’t make a decision at all.
Here are the scenarios from least likely to most likely:
- The court could not come to any decision about what to do with the cases, and agree to look at them again during their next conference...in October. This would keep the travel ban on hold at least until then. The court doesn’t have to be in agreement on the merits of the case to avoid this outcome, or even agree about whether to take it up; they just have to agree that it’s appropriate to vote on whether to take up the case, and whether to let the ban go into effect in the meantime, after only one conference.
- The court could decide that it doesn’t want to take up the travel-ban cases at all. Because the Fourth and Ninth Circuits agreed that the travel ban should be put on hold, the Supreme Court doesn’t technically need to step in. (And in fact, in previous high-profile court cases, it’s waited until there’s a disagreement among circuit courts before stepping in to resolve the dispute.) It could simply deny certiorari (by having six or more justices vote against it) and refuse to take up the case, allowing the lower-court rulings to stand while the district judges continue to consider the ultimate constitutionality of the travel ban.
- The court could allow the travel ban to go into effect over the summer and consider the case in the fall. This is what the Trump administration is asking the justices to do — it wants them to stop the injunctions issued by the lower courts from being in effect until the Supreme Court has had a chance to rule on whether to uphold them. The Supreme Court wouldn’t have to formally overrule the circuit courts’ decisions to do this, but it would essentially allow the Trump administration to ignore them for now. While it only takes 4 justices to agree to take up a case, though, it would take five or more justices to agree to let the ban go into effect.
- The court could agree to take the cases up when it reconvenes in the fall. This is the most traditional option: the Supreme Court could grant certiorari in the travel-ban cases, and set a schedule for oral argument after its next term begins in October, just like it would do for any other case granted cert at the end of the term. But unless the Supreme Court explicitly says otherwise (a la the previous option), the travel ban will remain on hold until the Supreme Court has heard the oral arguments and ruled on the injunction sometime after October 1st. In practice, this would probably resolve the case slightly earlier than it would be resolved if the justices couldn’t even make a decision Thursday — but not by much. (The court might agree to come back sooner than planned to consider the travel-ban case — say, September rather than October — but that’s still an additional three months.)
- The court could delay its summer recess to hear the travel-ban case. If the Supreme Court actually wants to resolve this case quickly, there are only 2 ways to do it: stay out of the case entirely (by denying certiorari) or agree to delay their summer break until the case is resolved. This has happened before, especially in cases involving national security, high-profile policy fights, or both (the travel ban certainly fits both categories). In theory, the court could schedule a hearing in the travel-ban cases whenever it wants; in the Pentagon Papers case, it heard oral arguments after July 4th and didn’t issue a ruling in the case until late July.
Any of these is theoretically possible. But not all of them are equally likely.
Because this is such a high-profile case, it’s likely that the Supreme Court will want to have a say — which means they’re unlikely to simply decide not to take it up (and let the lower court rulings stand), and reduces the odds that they won’t be able to come to an agreement at all on Thursday about what to do with the case (and will allow it to sit on the table over the recess).
The court’s respect for the traditional judicial process, on the other hand, is likely to make them less-than-receptive to the Trump administration’s request to push aside the lower court rulings and let the travel ban go into effect over the summer.
If the court doesn’t give the Trump administration what it wants on the travel ban immediately, though, it might be more likely to postpone its own vacation to resolve the case at the Supreme Court level as quickly as possible — thus avoiding the risk of letting the travel ban remain on hold for months, then ruling in the fall that it really shouldn’t have been put on hold to begin with.
Ultimately, it’s worth remembering, the Supreme Court is more likely to side with the administration and uphold the travel ban than the lower courts were. Critics of the travel ban deliberately picked liberal-leaning circuit courts to take up the case, while the Supreme Court, especially with the addition of Trump nominee Neil Gorsuch, has 4 reliable conservatives and one swing vote.
What the justices decide in how to take up the case probably won’t tell us much about how they’ll ultimately rule. (The exception is if they grant the Trump administration’s request to put the travel ban in place over the summer; if five justices believe that the ban should be in effect immediately, they probably believe that it’s constitutional and the lower courts were wrong.)
But the attention being paid to whether, and when, the justices take the travel-ban cases up is likely to remind them of just how high-profile this case is — and of the concerns it’s raised among progressives about the independence of the judiciary, and among conservatives about the relationship between campaign rhetoric and policy.
Above all, it’s a reminder that at the end of the day, only the Supreme Court will be able to put this legal battle to bed. The question is not whether they do so, but when.