With the prospect of a headline-making finish, the Supreme Court will close its current term with two days of drama on Monday and Tuesday. The most significant issue before it is the fate of President Trump’s controversial executive order putting limits on immigration of foreign nationals, including refugees.
But the end-of-term business may also produce a major decision on the right of churches and their affiliated organizations to gain equal access to government benefits that are intended to be neutral about religion, along with a highly significant ruling defining the government’s power to detain in prison-like conditions immigrants who are facing deportation. That second issue may have some bearing on President Trump’s aggressive policy in dealing with undocumented immigrants now living in the country.
And the court is facing some hard choices about whether it will rule, at its next term, on new disputes about the rights of same-sex couples – in a case from Arkansas about their rights as parents and a case from Colorado on their right to equal service by businesses – and on a high-profile Second Amendment case from California on citizens’ right to carry guns in public for self-defense. The court has been considering each of those cases for weeks without making up its mind to rule on them or bypass them.
Although there have been no reliable signs that any of the Justices will announce retirement at the public session on Monday, rumors have continued to make the rounds that Justice Anthony M. Kennedy, who will be 81 in July, could reveal plans then to end his career. He has said nothing publicly on the subject. The longest serving of the Justices, Kennedy joined the court more than 29 years ago.
The court is scheduled to issue its final round of written opinions in the public session Monday, and two final lists of orders on new cases, some on Monday, the others on Tuesday morning. The Justices will not be on the bench for the release of the Tuesday orders.
There are six cases remaining that have been heard but not decided, but there is a chance a few of them could be held over to the next term for a new hearing because difficulties have arisen in resolving them or because some of them were heard by only an eight-member court (before Justice Neil M. Gorsuch arrived) and the court prefers review by a full bench.
There is no advance word on just when the court will announce what actions it will, or won’t, take on the presidential order, issued in March, to suspend for 90 days entry into the U.S. of foreign nationals from six Muslim-majority Mideast nations, to suspend for 120 days arrivals of refugees from anywhere in the world, and to put a lower annual ceiling on refugees allowed to enter.
The constitutional fight over that order developed late in the court’s current term, but it might come to a swift conclusion early in the week, or it could be carried over – at least in part — to the Justices’ next term, which opens in October. Any delay in winding up that controversy now would, of course, leave it in legal limbo over the summer months.
At its most potent, this controversy could provide a sense of whether the Supreme Court will react differently to President Trump, or will give him the benefit of the doubt that the court long has accorded a co-equal branch of government.
Although his lawyers have argued strenuously that President Trump is entitled to the usual deference given a Chief Executive, lower courts energetically second-guessed his claims of emergency power to decide, almost completely without review by the courts, who may enter the U.S. as a matter of national security.
One federal appeals court, in a case from Maryland, has ruled that the Trump executive order on the 90-day suspension for Mideast nationals is very likely to be found unconstitutional as a form of discrimination based on the travelers’ Muslim faith. A different appeals court, in a case from Hawaii, has ruled against the President, finding it likely that both of the suspension orders and the cap on refugee arrivals exceeded his authority under federal immigration laws.
The uncertainty over when and how the court will act on the government’s appeals of those decisions arises from the specifics of the tasks before the Justices. There are separate requests in the two cases for the court to allow the executive order to go into effect immediately while the government appeals go forward, there are separate requests for the court to grant full review of both of the two cases – but not until the court’s next term, and the issues are different in each case – constitutional in the Maryland case, statutory in the Hawaii case.
The court has had little time to sort out those cases in recent days, because much of the Justices’ energies have been absorbed in trying to finish writing the remaining rulings in the cases that have been argued in regular sequence. The court does not often have to confront a major new dispute in the closing weeks of a term.
Timing can be a very significant factor. If the court does not regard the immigration cases as matters of high urgency, it has the option – although probably no one expects it – to simply do nothing at this time. In that event, lower court orders against enforcement would remain in effect, and the Trump Administration would be faced with deciding whether to try to start all over with a new executive order in an attempt to salvage the president’s policy initiative. The White House actually did just that after an earlier version of the Trump order was blocked by lower courts. That then led to the drafting of the revised order now up for review.
The court always takes very seriously what federal government lawyers ask of it, out of respect for the Executive Branch, so the realistic prospect is that the Justices are going to act this week.
The court does have a range of choices, beginning with timing: What does it do on Monday or, at the latest, on Tuesday? Does it act simultaneously, or in separate orders, on the two cases and does it act simultaneously, or separately, on the question of allowing enforcement of the executive order to begin and the question of whether the order is valid as written?
There will be a list of new orders coming out at 9:30 a.m. Monday, and, if the court is ready to do so then, the list could contain all of what the court is going to say, or maybe just part of that, with the remainder to come out later in the day or maybe not even until Tuesday at 9:30 a.m.
It would be tidier, and easier for the public to understand (and the press to communicate), if everything is tied up in an omnibus order. That is, in fact, a realistic option, but can’t be counted upon in advance.
It has sometimes seemed, as the government appeals have developed, that the question of permitting or blocking the immediate enforcement of the presidential order might be the whole story. If the order is allowed to go into effect, it may make little difference if the court also were to grant review of the cases, because the two suspensions would expire before the court would rule on their validity (assuming that, in the meantime, the President doesn’t extend them).
The scenario could change if the presidential order is kept on hold by the Justices. If review is denied, then the case is over: the lower court rulings would have settled the controversy against President Trump for differing reasons, and they would limit what the president could do in response. If review is granted, but put off until the next term of the court, that could hold promise for the government that the orders might survive the review, though belatedly.
There is at least one other possibility: the court refuses to allow enforcement, and goes ahead now to decide in a final way the legality of the order, without further written legal briefs or oral argument. That seems quite unlikely, partly because of the differing legal issues between the two cases and partly because there has been little time to actually write such a ruling, since it would be an affront to the government to rule against it without spelling out the reasoning in full.
Predicting how the court is going to react is also made complicated by the fact that the voting among the Justices would be different, as it applies to the two broad aspects of what is before the court. In order to allow enforcement to begin, there would have to be support for that from five of the nine Justices. In order to grant review of the legality of the orders, it would need the votes of just four. But then a ruling on the legality issue would require approval by five — a majority of the nine members. There could be differing combinations of the voting patterns, but the bottom-line requirements would remain: five to permit enforcement, four to grant review, five to decide finally.
As the Justices went into this weekend, no doubt working with their law clerks to finish up, there were no public indications of which way they were leaning on the presidential order, since there has been no public hearing by the Justices on any of the issues at stake in the Maryland case or the Hawaii case.
(NOTE: This post also appeared today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)