Good morning, breakfasters:
Three decisions down Friday morning, along with an announcement from Chief Justice John Roberts that the term will wrap up on Monday.
First we had Perry v. Merit Systems Protection Board, an employment discrimination case that came down in favor of the employee; Justice Ruth Bader Ginsburg authored an opinion joined by the chief justice, Anthony Kennedy, Samuel Alito, and the liberal wing. Justice Gorsuch filed his first dissent. Then came Murr v. Wisconsin, a regulatory takings case with Justice Kennedy joining the liberals and the chief justice filing the dissent. And finally, Lee v. United States, an ineffective assistance-of-counsel claim that would have led to a deportation due to bad legal advice, with the chief justice and Justice Kennedy joining the court’s liberal wing to side with the defendant. Justices Thomas and Alito dissented. As I suggested yesterday, the chief justice and Justice Kennedy are chock-full of surprises.
So lots to talk about but also nothing we might term a blockbuster. There is certainly reason to believe that we may have some 4–4 splits on Monday, but we shall wait and see. Roberts ended the morning with the announcement that all remaining cases “that are ready” will be released next Monday. Which means they are either still mulling the travel ban case, they are pushing cases to next term for re-argument, or that he is messing with us.
In the meantime, it’s useful to return to Walter’s initial post in which he asked about the travel ban. Let’s recall that the court cannot really throw the summer slipcovers over the place until it takes at least some action on the appeal now before it. The orders could come at any time, now. We know that the nine justices met yesterday for conference and most likely know what they plan to do. The president has asked the court to lift the injunction and immediately enforce the latest version of the ban and then to hear the case, after judges in both the 4th and 9th U.S. Circuit Courts of Appeal have allowed the injunctions to stay in place.
We know the justices will tend to scatter next week—some of them teaching and lecturing abroad—and they’ll want to take some action before then. It’s tricky because you need only four votes to hear the case but five to lift the injunction. It also takes time to write these orders and the dissents. And as Walter suggested, there is a looming question about whether the window barring travel from Iran, Libya, Somalia, Sudan, Syria, and Yemen will have already run out if the judges take up this case four months from now and halt the injunction. (It was initially a 90-day ban but we don’t know yet what that means for this litigation.) In the view of some academics there may be little left to fight about come October.
Trump’s lawyers filed their last pleadings Thursday quoting past Justice Kennedy back to present Justice Kennedy in an effort to induce future Justice Kennedy to side with the president. The filing even cites a Kennedy opinion from Monday in which the justice wrote that “[n]ational security policy is the prerogative of the Congress and the President.”
Walter, I would love to hear how you think they’ll respond to Trump’s appeal and how the rest of the term will shake out. Whatever comes next in the travel cases will cast a long shadow. Pam, I keep thinking about an event you and I did two weeks ago when we talked about constitutional norms, and I wonder how it feels to be watching a court that looks to have had its norms—for the most part—back in place this June. Here is where I also ask any of you who wants to speculate to weigh in on the retirement gossip. Because when the Supreme Court is only the 17th most interesting story in the last week of June, we can certainly strive to bump it up to the top 10?