The Supreme Court heard oral argument today on President Trump’s proposed ban on travel to the United States from a handful of countries nearly all of which happen to be predominantly Muslim. Things went considerably better for the attorney defending the travel ban (Solicitor General Noel Francisco) than for the attorney challenging it (Neal Katyal).
In the Times’ view, the Court’s “five-member conservative majority signal[ed] it was ready to approve a revised version of the president’s plan.” Howe reports that the “travel ban seems likely to survive [the] Supreme Court’s review.
Opponents of the ban were hoping that Chief Justice Roberts and/or Justice Kennedy would join the court’s four-member liberal wing to strike it down. This is still possible. However, neither Justice seemed receptive to Katyal’s arguments against the ban.
Chief Justice Roberts was all over Katyal early and often with skeptical and politely hostile questions. Kennedy was less involved, but nearly all of his questions were adverse to Katyal’s position.
Even Justice Kagan seemed troubled by aspects of Katyal’s argument. Kagan noted that the president’s order highlighted important national security concerns. She then asked how the Supreme Court is supposed to determine the legality of the president’s order without evaluating these national-security concerns.
Kagan seemed uncomfortable with the Court engaging in such evaluation. Kennedy did too. They should be. Evaluating security concerns is a role far better suited to the executive branch than to the courts.
I’m not predicting the government will gain Justice Kagan’s vote. However, Howe reminds us that when the justices granted the government’s request last December to enforce the full set of restrictions in the current incarnation of the travel ban while its appeals moved forward, only two justices – Ginsburg and Sotomayor – publicly disagreed with that decision.
That would have given the government reason to be optimistic, and today’s argument might have reinforced that optimism: Although it’s always risky to make predictions based on the oral argument, it’s difficult to see how Hawaii can pick up the five votes that it needs to strike down the president’s order.