The Supreme Court will have to move with unusual speed if it is to promptly settle the constitutional dispute over President Trump’s temporary ban on entry into the U.S. of foreign nationals of six Mideast nations with Muslim majorities. The Justices at this point are only about five weeks from the planned end of their current term, and that would be too short under a normal schedule.
There is, thus, the prospect that the Justices might have to severely shorten the briefing and hearing timelines if they do take on the case, and it may be that they would even hold a special sitting in the summer – if they regard the controversy as an urgent one.
After having the revised Trump executive order blocked on Thursday, by the U.S. Court of Appeals for the Fourth Circuit, Administration lawyers have 90 days to ask the Supreme Court to review that decision. Attorney General Jeff Sessions has already promised an appeal.
But it is highly probable that the government lawyers will move much more quickly than that; the court fights over the immigration restrictions have been carried out on expedited schedules in all of the lower courts. It took the Fourth Circuit Court only 17 days after its hearing, for example, to produce a 205-page ruling.
The government is likely to go to the Supreme Court in a matter of days with at least its first request: a plea to lift the nationwide court order now in effect so that officials could begin to enforce the 90-day suspension of entrants from the nations of Iran, Libya, Somalia, Sudan, Syria and Yemen.
That plea (technically, a request to “stay” the lower court ruling) normally is separate from the filing of the appeal itself. But, to save time, the government attorneys could file the appeal at the same time as the postponement request (they did that in the Fourth Circuit Court) or they could file only that request and ask the Supreme Court to treat it as the appeal, too.
Tbe Justices would have to act on the two separately, because the standards for its action on the two are different, and the votes required to act also are different.
In order to get a lower court decision “stayed,” the party that will be appealing has to show that there is a good chance that at least four Justices will be willing to rule on the appeal, and a good chance that the appeal itself will succeed with the lower court order being struck down. It takes five votes to grant such a request.
When the court turns to the issue of whether it will actually rule on the merits of a new case, the basic issue for the court is whether the issue is significant enough to justify the use of the court’s time. That test is passed only about 75 times a year, among the many thousands of appeals filed at the court. It takes only the votes of four Justices to grant review, but then a majority of five to decide it in a final way.
The last time a major immigration case reached the Supreme Court, in an appeal by the Obama administration seeking to enforce a broad directive to delay deportation of more than 4 million undocumented immigrants, there were four votes to grant review, and on an expedited schedule, but then the court split 4-to-4 in the end, thus allowing a lower court ruling against that policy to stand. At that time, the court had only eight Justices, after the death of Justice Antonin Scalia. There is now a new ninth Justice, Neil M. Gorsuch.
Most observers of the court’s work believe that the Justice most likely to hold the decisive fifth vote on the Trump executive order, if reviewed, would be Justice Anthony M. Kennedy, because an opinion he wrote in 2015 conceded that a president has broad powers over immigration policy, but that there are situations in which the president’s action can be second-guessed in the courts. That opinion has been debated in all of the lower-court cases on the Trump order.
If, however, the eight Justices involved in the action on the Obama directive last year were to split 4-to-4 on whether to uphold or strike the Trump order, Justice Gorsuch could cast the deciding vote.
All of that, of course, depends on whether the court agrees to review the Fourth Circuit Court’s new decision blocking the Trump executive order.
Another federal appeals court, for the Ninth Circuit, is currently reviewing the Trump order in a case that involves not only the suspension of entry of nationals of the six nations, but also a 120-day suspension worldwide against entry of any refugees. That second key provision was not at issue before the Fourth Circuit.
Should the Ninth Circuit Court split with the Fourth Circuit Court, on the 90-day order against Mideast immigration, that would lift an order issued by a trial judge against enforcement of that provision. But that would not set aside the nationwide order on that restriction imposed by the Fourth Circuit.
Whether action by the Ninth Circuit Court has any impact on what the Justices do with the government’s appeal from the Fourth Circuit Court depends upon how quickly the Ninth Circuit ruling comes out. The Justices almost certainly would not hold the Fourth Circuit ruling to await that other decision.
If the Trump legal team seeks a swift ruling on both its request for a “stay” to enforce the suspension of Mideast immigration, and on the legality of the Trump executive order on that point, the Justices conceivably could set a highly expedited schedule for action.
If they were to refuse to block the Fourth Circuit decision, that would not necessarily doom the chances for review on the executive order’s validity, but it could make winning that appeal considerably more difficult.
Normally, it takes 105 days from the time the court agrees to decide the merits of a new case for the briefing to be completed, before a hearing is held. There clearly is no time for that in the remainder of the current term. That raises the prospect, if review is granted, of a special sitting in the summer. The court has done that before, but it is very, very rare.
If the Fourth Circuit ruling is blocked by a “stay” order, but then review is granted, that would allow enforcement of the Mideast travel restriction but the Trump team appeal itself might not be reviewed until the court’s next term — if there were no special summer sitting.
Even if there is no split in the lower courts on the enforceability of the Trump order, that does not mean that the court would not agree to review that order’s legality. The court seldom turns down an appeal by a co-equal branch of the national government in a case of major importance. The court very likely will regard this case as that significant.
(NOTE: This post also appeared today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)