As predicted and penned on this very website, the Supreme Court set aside the injunctions issued by the Fourth and Ninth Circuits, the Virginia, Hawaii and Washington district courts, almost in their entirety, on the very reasons forecast here before: the over breadth of the injunctions, and the district courts trying to limit the power of the presidency over non-resident aliens with no legally enforceable ties to America.
First, what the Supreme Court ruled on was a stay motion. In order to grant the stay motion, the court must acknowledge Trump is highly likely to win on the merits, which it does implicitly, but even then the Supreme Court has been historically reluctant to issue stay orders. The fact they did so hear, and did so unanimously, is a great win for the rule of law, as well as Trump. When law professors like Dershowitz and Turley have been echoing the opinions on these pages about the lawfulness of Trump’s travel ban, it was the rule of law that suffered as partisan jurists on the lower benches put the law aside for their partisan obsession with Trump.
What is most noteworthy is that not one Democratically-appointed Supreme Court jurist dissented; not Ginsburg, not Kagan, not Sotomayor, not Breyer. Indeed, the only dissent arose from the three conservative jurists who wanted to use the stay motion to scream down how bad the lower courts’ rulings were. Their confidence to dissent further signals what the dissenting Ninth Circuit jurists warned of months ago: that the courts striking down the travel ban had no good legal cause to do so.
The writing is now on the wall. As the Court noted, the most consequential aspect of the travel ban — the complete ban on those without ties to America from the list-of-six countries posing the most rate of travel risk — will have been fully enforced and satisfied by the time the case comes to the fall hearing. That is why the court requests further briefing on the possibility of mootness by fall on the big issue with the travel ban. That is also why Trump’s win today trumps all that came before. In the end, the legal case supporting Trump was so open-and-shut in Trump’s favor that even on the harder standard of a stay, it obtained unanimous support from one of the most partisan Supreme Courts in our memory. It might have gone to the 12th round, but in the end, it was a Trump knockout win.
Robert Barnes is a California-based trial attorney whose practice focuses on Constitutional, criminal and civil rights law. You can follow him at @Barnes_Law.
This is an opinion piece. The views expressed in this article are those of just the author.
