Artful Dodge

The Supreme Court’s Artful Dodge

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

By RICHARD PRIMUS

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.”)

The long-term consequences for immigration are impossible to predict. Maybe the President, having had enough of this particular scuffle, will declare victory and move on. Or maybe he will issue some new entry-ban order in September, and the whole process will begin again, on a new record that raises similar issues but in some revised form.

But whatever the implications for this particular issue, this morning’s developments signaled something about an internal dynamic within the Supreme Court. The decision came in a per curiam opinion, officially authored by no particular Justice but likely the work of an institutionalist like Roberts or a pragmatist like Breyer. It seems like an attempt at statesmanlike compromise. Nobody is entirely happy, but everyone gets something, and no damage is done to future legal doctrine one way or another. At a time when each week seems to bring a new kind of crisis in American government, the opinion seems like an attempt to keep a fragile peace.

But the per curiam was not the only opinion issued this morning. Justice Thomas, joined by Justices Alito and Gorsuch, issued a separate opinion partly dissenting from it. In their view, the order should be permitted to go into effect now in its totality. Their reason why, they explained, is partly based on their view—officially preliminary, but highly suggestive—that Trump’s executive order is probably valid.

The separate Thomas opinion has no practical consequences. Because only three Justices joined it, it does not affect what parts of the order are stayed and what parts are effective. And the case would ultimately disappear as moot even if Thomas, Alito, and Gorsuch had their way.

The clock is running, and by October it will run out. But by signaling a view on the merits, these three Justices announced their unwillingness to restrain themselves for the sake of a Court-wide effort to keep the peace. The per curiam studiously avoided taking any position on the merits of the case, even though the official standard for considering the dissolution of a stay makes the likely ultimate disposition a factor in the analysis, and even though several Justices surely believe the executive order to be flagrantly unconstitutional. Six Justices forewent addressing that issue in the name of turning down the heat. Three others declined to do so, even though nothing practical was at stake. It’s as if Chief Justice Roberts asked “Can’t we all get along,” and Justice Thomas said “Actually, no.”

So whatever today’s opinions portend for Trump’s order, or further moves by the administration on immigration issues, they signal clearly both an inclination to pursue practical comity across ideological lines from several members of the Court—roughly speaking, from Ginsburg and Sotomayor through Breyer and Kagan to Roberts and Kennedy—and a countervailing commitment by the other three to stick by their guns, even when doing so has only symbolic import. Partly, of course, this picture of the Court is significant because it says something about how the newest Justice is approaching his office. By lining up with Thomas, Justice Gorsuch signaled that the new guy is perfectly willing to make trouble as the Chief tries to keep the peace--something that might give Roberts a headache as he realizes that Gorsuch is likely to be there for the rest of Roberts's career. More generally, it might suggest an internal division about the importance of the institution’s interest in hanging together at an unusually unstable time in the Republic’s history. With considerable uncertainty about what lies ahead, the Court’s pragmatists would probably like to hang together as much as possible. By writing separately today, three Justices signaled that they are not so invested in that project. Let the chips fall where they may.