Can anyone explain in layman’s terms how this ban thing is likely to play out with the current composition of the supreme court and the lower court rulings? From what I was reading on CNN the lower courts have blocked the ban, the government is unlikely to let this go, and eventually it’s going to be bumped up to the highest court for a ruling (as a side question, how long is this all likely to take?). Currently, the court is down one justice (and I assume the current appointment won’t be ratified or whatever in time to fill the post for this case, if it happens), and the CNN article seemed to take it for granted that this would mean an even split (why? Just because the conservative judges will vote to allow the ban and the liberal ones will vote to get rid of it? Is it really politics without viewing the actual legal merits of the case??), which means…what? That the lower courts rulings stand? Or something else?
If the SCOTUS splits 4-4, then the ruling by the lower court stands.
I think Roberts is the wild card on this one, more so than Kennedy. Ever since he was the key vote to uphold the mandat in the ACA case, I’ve not pegged Roberts as a sure conservative vote.
Alito, on the other hand, was one of the guys behind the “unitary executive” theory, so I would think he would be a sure one to uphold the EO.
Roberts is a man who from what I can read cares more about the Court as an institution than ideology.
He also has a bit of an…English…approach to decision making, he seems to perfer to give plain meaning to the text. Which I like.
As for how quickly things will happen, the government has appealed from the District Court’s Temporary Restraining Order to the 9th Circuit Court of Appeals.
That Court has directed the parties to file their briefs today, so an expedited hearing on the TRO is likely.
As I commented in another thread, I’ve had cases where I’m told by the court on Friday to file a brief on Monday. It’s been a busy weekend for counsel on this case, fuelled no doubt by Red Bull and take-out pizza.
It’s a little more complicated than that. Yes, he does care about the reputation of the Court and his own legacy, which has moderated his stance on the ACA decisions that so infuriated pure ideologues like Scalia. But that only goes so far when it comes to things that he really has strong ideological views about. It was Roberts’ ideology that motivated his personally guided legal machinations that turned Citizens United from a limited and insignificant ruling that nobody would ever hear about again into a broad landmark legal precedent that changed the face of campaign finance. Roberts is intelligent and cunning enough to think strategically, but he is no moderate.
Posted in another forum
This guy said the Supreme Court would absolutely refuse to hear this case because it has no basis, no standing, and is entirely without merit. He said the President absolutely had the right to issue the executive order and the Supreme Court will agree with that.
But there are lots of courts involved now, right? Very complicated.
:dubious:
It was Kennedy who wrote the majority, not Roberts. And legal machinations? SCOTUS is not bound by its own previous decisions, which was the focus of his concurring judgement. Even if he hadn’t written that, the case would have had being a landmark one.
Roberts, unlike everyone except Kennedy seems to be willing to put his personal views aside in deciding cases.
Here’s an excellent and authoritative article on the subject from a respected legal analyst:
How Chief Justice John Roberts orchestrated the Citizens United decision
By calling for the case to be reargued and changing the terms of reference, Roberts changed the whole scope of the case, overturning McCain-Feingold and two other key precedents and defining a whole new era of unrestrained campaign finance. Getting Kennedy to write the majority ruling was brilliant as Kennedy was wholeheartedly onside with it.
It stands as an absolutely stunning example of judicial activism motivated by ideology.
How would a state like Washington or Minnesota go about convincing a judge that it is injured by the Muslim ban? And is what might be considered the layman’s definition of injury is what is meant by the term “Injury” in a legal sense?
This has been discussed ad nauseam in all the other threads discussing the topic, not to mention the news stories and court briefs filed by the parties (if only people bothered to educate themselves before posting here). Basically, WA is alleging that the ban is harming it financially on account of several factors, including the fact that foreign students who normally pay tuition are now banned from entering the country (state-owned universities are considered part of the state government) and that employees hired by WA (such as professors and researchers) are now unable to enter.
My apologies to Inbred Mm domesticus for my tone in the last post – that came out harsher than I initially meant it to.
That’s the problem that the guy on BBC news pointed out this morning. So it seems to me (IANAL, but I’ve watched at least 5,000 hours of Law & Order) that a GINORMOUS class action suit is the answer.
Backing away and focusing on the OP…
A federal district court judge in Washington state has issued a Temporary Restraining Order against enforcing President Trump’s Executive Order.
The Trump administration is appealing the issuance of that TRO. The appeal goes through the United States Court of Appeals for the Ninth Circuit. As many other issues appealed to this appellate court, this matter is slated to be initially heard by a three judge panel.
If the 9th Circuit panel rules for the Trump administration then presumably they will overturn the TRO that the lower court issued. Trump’s EO would go into effect*. The lower court could then have a full trial on the merits of the complaint and could eventually rule for or against the administration.
If the 9th Circuit panel rules against the Trump administration then the lower court’s TRO stands. The Trump administration could then appeal the panel’s order upholding the lower court’s TRO. That appeal on the TRO matter only could be filed in one of two ways… as a request for the full 9th Circuit to hear the matter, or as an appeal the the US Supreme Court. Meanwhile the matter could still go back to the lower circuit court for a full hearing on the merits of the case.
If an appeal of the panel’s denial of overturning the TRO is heard by the full 9th Circuit they could rule for or against the administration to leave in effect or overrule the lower court’s TRO. Again, if they overrule the TRO the lower court could still hold a trial on the merits of the case but the EO would go into effect in the meantime. But if the full 9th Circuit upholds the TRO then the last avenue of appeal for the administration on the TRO matter is to the United States Supreme Court.
An appeal to SCOTUS initially goes to Justice Anthony Kennedy since he is responsible for such appeals from the 9th Circuit. He could overturn the appeal’s court decision (whether by the full 9th Circuit or just the three judge panel) or he could refer the matter to the entire US Supreme Court. The Court could decide to hear the matter or refuse to hear the matter. Betting money says he would refer it to the full court if it comes to that and they would take the case even if only to say courts have no business delving into such matters and to effectively overrule the lower courts. If the full SCOTUS rules on the matter then there are no further avenues of appeal with regard to the TRO. The circuit court back in Washington states could still hold a trial on the merits of the case.
Now the politics… The Supreme Court currently only has 8 members. If the vote ties then the lower court’s ruling stands.
In modern times it has typically taken about 4-6 weeks after a president nominates a judge to a vacancy on the Supreme Court ( obvious exception is Obama’s nomination of Garland) before the Senate votes to confirm. If the Senate votes to grant Advice and Consent on Trump’s nomination of judge Gorsuch to the high court then he takes his seat essentially immediately. If that is in time to hear an appeal from the 9th Circuit then he gets to vote on the matter and a tie seems unlikely.
So… Democrats may try to drag out any hearings on the nomination of Gorsuch, hoping for a Supreme Court tie in the meantime. And Republicans may try to hurry things along, hoping Gorsuch would vote in the administration’s favor. Push comes to shove the Republicans seem to have to votes to force things to go their way if they can hold their coalition together.
- Many cases against the EO have been raised in several parts of the country. It is possible we could end up with conflicting rulings for a time, where teh EO could be enforced in some parts of the country but restrained by court order in other parts of the country.
I don’t think that’s accurate. Because the WA court has entered a nationwide TRO, it binds CPB nationwide. Even though the MA has since dissolved it’s TRO and upheld the EO, for example, travelers at Logan are still protected by the WA court’s injunction.
My point being if the TRO issued by the judge in Washington State is overturned by a ruling from the 9th Circuit that would not necessarily overturn any rulings made in other federal courts in other circuits.
Judge Ann Donnelly has made a ruling in a federal court in New York State affecting certain aspects of the EO. The United States Court of Appeals for the Second Circuit would handle any appeals of her ruling.
Similarly Leonie Brinkema made a ruling in Virginia. That’s Fourth Circuit territory.
And Allison Burroughs made a ruling in Boston. Massachusetts is in the First Circuit.
For the OP’s information I thought it important to show that even if something happens in the 9th Circuit and the TRO is overruled this matter may still be fought nationwide across several other Circuits. And if differing rulings result the Supreme Court would be the place to provide clarification.
So far rulings in the other circuits have not been extended nationwide. So far… This is a long way from over.
CNN is now reporting that a three judge panel of the 9th Circuit will hear oral arguments Tuesday night (tomorrow)on the matter. The administration gets to make its case for overturning the TRO during the hour long telephone hearing.
Not sure how fast the panel will issue a ruling.
The NY decision was (and is) extended nationwide, actually.
If I understand this correctly, you’re saying that if one court says the EO is not in violation of the law/constitution and another parallel court says it is and issues a nationwide injunction against it, then the second court effectively overrules the first. Is this correct, and if so, why?
Yes. I’m not sure what you mean by “why.”
The two court orders are not in competition. If CBP had two different courts telling them to do two different things, then that would be an issue. Here, there’s just multiple nationwide injunctions that overlap and do not compete, along with courts who decided not to issue injunctions. The scenario in which an actual conflict would arise is when you have two competing court injunctions, but this isn’t that.
Note that the precedent cited for this nationwide injunction was the Fifth Circuit’s nationwide injunction against Obama’s DACA program.