Reading the Supreme Court’s per curiam (unsigned) opinion in the Trump v. IRAP (Fourth Circuit) and Trump v. Hawaii (Ninth Circuit) “travel ban” cases today, I was struck by this. The Court unanimously stayed most of the injunctive relief granted by the lower courts in the two cases. In doing so, however, the Court doesn’t even address the usually key factor of likelihood of success on the merits. Apart from the mischief that Paul dissects nearby, what is going on here?
Justice Thomas tactfully notes this omission in his concurring and dissenting opinion (joined by Justices Alito and Gorsuch). He puts it this way: “I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed.” I may be mistaken, but it seems to me that the Court’s per curiam opinion drastically narrowing the current injunctions is difficult to understand any other way.
This is a relief because the Fourth and Ninth Circuit opinions are more or less insane. They seem to me a symptom of the left’s unhinged will to power in the face of Trump. Reading the Court’s account of the the appellate rulings in the per curiam opinion is almost laugh-inducing. The Court doesn’t even bother assessing the merits. The very dry per curiam opinion is truly must reading on this ground alone.
For everyone but me the least important question raised by the Court’s opinion is where this leaves me in the Doe v. Trump “travel ban” case referred to gingerly on page 2 of the per curiam opinion as the EO-1 litigation. I wrote about my unwilling turn in the EO-1 litigation for City Journal last week in “Don’t subpoena me, bro.” On advice of counsel (just kidding), I will say only that the Supreme Court has lightened the load of my anger management issues today.