A Ban The Court Would Love to Avoid

On June 1, the Trump Administration filed its application to stay the Fourth Circuit’s preliminary injunction against the attempted travel ban and petition for cert in the case.  While this is only the Supreme Court’s first potential entry point into this dispute, it marks an opportunity for the Court to rule on a central item in President Trump’s agenda.  President Trump’s recent tweet-storm in the matter could not have helped his chances of success.

This case is important both for its potential repercussions as well as for its symbolism.  For these reasons the Court may wish to avoid making substantial inroads in this matter.  While it is unlikely that Court will be able to fully extricate itself from this matter, it will probably minimize its involvement to the maximum degree possible.

One way for the Court to skirt this first entry point into the travel ban litigation would be to rule the case moot or no longer an active dispute due to the endpoint of the travel ban.  This possibility has led to a lively debate between scholars that think the Court will expediently rule the issue moot and those that do not.

Why will the Court try to minimize its involvement in this issue? Primarily due to one of its main goals of recent decades: to avoid the perception that it is a political body.  There is a long history of conversation about whether and to what extent the Court is a political body (Judge Posner argued that that the recent Court confirmation process was evidence of this politicization).

Especially due to Court’s ruling in Bush v. Gore and the subsequent public backlash, many Court commentators convey that one of Chief Justice Roberts’ main goals is to avoid a similar situation and predicament.  Many claim that the Chief’s alignment with the Court’s liberal Justices in the recent healthcare case as evidence in support of this supposition.

Statistics reinforce this claim as well as other possible rationale for the Court to attempt to avoid this matter (to the greatest degree possible).  In recent years, the Court has decided few immigration cases by a single vote margin majority.  One such decision, Scialabba v. Cuellar de Osorio dealt with age-related matters and bears little similarity to the current matter.  The Justices also did not split along ideological lines in this decision.

Another, Kerry v. Din, is more related to the current ban.  It is also a reason to think that the Justices may hold divergent views on the Trump Administration’s travel ban. The case dealt with the right of a U.S. citizen spouse to receive a detailed reason for a non-citizen spouse’s visa denial.  Under the relevant statute, one possible rationale for the visa denial was engagement in terrorist activities.  The Court, with a majority opinion authored by Justice Scalia, vacated the lower court’s ruling that a citizen spouse had a liberty interest in receiving the full explanation for the visa denial.  The Justices split along ideological lines in this case with Justices Scalia, Roberts, Thomas, Alito and Kennedy in the majority.  Justice Kennedy concurred in the judgement but opined that the Court did not need to reach the question of the liberty interest in order to vacate the Ninth Circuit’s ruling.

This by no means implies Justice Kennedy would rule in favor of the stay or of the travel ban generally, but it does point to the possibility of an ideological division over this issue.  If this were the case, Chief Justice Roberts may once again be forced to juggle his views on the law and his views on maintaining the Court’s perceived legitimacy.

The Court has also been moving away from tackling this type of case.  On one hand, the Court has increasingly decided cases by one vote over recent decades. This is apparent in the figure below which looks at the Court’s one vote margin splits as a percentage of all of its decisions by term (which also shows the anomalous 2015 term where due to the Court’s eight Justice composition for much of the term led the Justices to only split by one vote twice, both with 4-3 margins).

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Over the same time and especially recently, the Court has taken dramatically fewer cases dealing with civil rights (the general area where the travel ban case as well as immigration-related matters lie).  This is apparent in the following figure looking at the Court’s slate of cases dealing with civil rights compared to the Court’s propensity to take cases in other areas with typically high case counts – criminal procedure and economic activity (case counts taken from the Supreme Court Database).

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It is even more apparent when looking at the trajectory of the Court’s civil rights docket in isolation.


Likewise, the Court has not engaged in many recent cases reviewing executive power.  The Court decided both for and against the Obama Administration in its two recent forays into this area with Zivotofsky v. Kerry and NLRB v. Canning.  In Zivotofsky, the Court held with a majority opinion authored by Justice Kennedy in favor of the executive’s power to recognize foreign states.  Justices Scalia, Roberts, and Alito dissented. In Canning, the Court defined limits on the President’s recess appointments power by holding unanimously that pro-forma sessions of Congress are insufficient periods for the President to make appointments to federal offices. With a new administration in power though (post-Obama), the Justices may be swayed in disparate directions.

One case type that the Court clearly has taken diminished involvement in over time are those where the United States is a party.  The figure below looks at the Court’s involvement in cases where the United States is a direct party as a percentage of the Court’s total caseload by term.


When the Court has heard cases involving the United States it has been increasingly less likely to divide by a one vote margin.

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The figure above shows this diminished trend that has fallen from a high of almost 11% of the Court’s merits rulings per term to around 1% in many recent terms (and with none in 2015).

Clearly not all of these trends can be claimed as fallout from the Court’s ruling in Bush v. Gore, but this fallout only raises expectations that the Court will not decide such a case in a partisan manner.  Assuming the Justices would split along ideological lines in any merits ruling dealing with the travel ban, the Justices would do well to avoid implicating themselves in this morass from the get-go.  This would accord with the Court’s case choice trends.

On the other hand, the Court may not be able to abdicate a role in the resolution of this matter (at either the application for stay or merits level).  If this is the case and the Justices initially align ideologically there are several possible outcomes (although as mentioned above President Trump’s recent tweets make it less likely that the Administration can defend the ban as neutral in intent or application).  While the Court’s four democrat appointees are likely to side against the travel ban some have already requested Justice Ginsburg to recuse herself from any related matters due to her negative comments regarding then candidate Trump. If Justice Ginsburg remains in the litigation and assuming Justices Alito and Thomas would rule in favor of the ban, Justices Kennedy and Roberts become the key votes at play.  If Justice Kennedy were to decide with the liberal Justices, Justice Roberts could rule with the conservative Justices and avoid a truly partisan split.  If Justice Kennedy were to decide in favor of such ban, Chief Justice Roberts would be placed in a similar, problematic position as he was with the healthcare case.

Before the Justices even potentially get to the merits of this dispute though the Court must deal with preliminary issues such as the current application for stay.  A ruling on this application does not hold the same potential repercussions as a ruling on the merits of the ban and so the stakes are not as great for the Justices.  While the Justices only deal with the preliminary injunction issue at this point, we will begin to see their approaches to this matter generally and potentially how they will decide on the merits of this matter in the future.


On Twitter: @AdamSFeldman

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