Supreme Court deals a blow to activist judges, hands Trump a victory on ‘travel ban’

December 7, 2017

The U.S. Supreme Court lifted the temporary stays on President Donald Trump’s latest version of his travel ban Monday. But was there more to the Supreme Court’s decision than a simple reversal of two lower courts’ orders?

Kevin Daley, the Supreme Court reporter for the Daily Caller, thinks so. In a piece on Wednesday, Daley argued that the Supreme Court’s travel ban order was a strong rebuke to the 4th and 9th Circuit’s politically motivated anti-Trump rulings.

Travel ban back in play

The U.S. Supreme Court sided with the administration in a 7-2 decision, and overruled orders from two federal circuit courts which placed a temporary stay on implementing the travel ban. Justices Ruth Bader-Ginsburg and Sonia Sotomayor dissented.

Trump’s travel ban, which was issued in September, severely restricts immigration from eight countries. Six of them are Muslim-majority: Syria, Libya, Iran, Yemen, Chad and Somalia. The remaining two — North Korea and Venezuela — are problematic for reasons other than Islamic terrorism.

The court’s orders represent a significant win for the Trump administration. But they may represent something else as well.

Underlying meaning?

University of Richmond School of Law professor Carl Tobias said that in addition to the court granting the government a temporary victory, it may also have hinted that the Supreme Court will side with the administration if the cases come back to it on their merits.

Kevin Daley, writing for The Daily Caller News Federation, agreed, adding that the lower courts should hear the merits of the cases “prudently, and with sufficient respect for the presumption that the administration is acting in good faith.”

Daley also read more into the orders. He wrote:

Secondly, the Court, for the most part, spoke as an institution. The order was forthright and terse, suggesting the Court sees little ambiguity in this case. The sober style means to communicate decisiveness, competence and the sense that the Court is conducting its business without dramatics, unlike the rest of the government. What’s more, just two of the nine justices registered their dissent. Given these facts, it appears the justices are doing their best to speak as a Court and not as an amalgamation of nine separate jurists.

There’s no question that the orders to each circuit were brief and void of supporting authority such as prior court decisions. Whether the court “was forthright and terse” in doing so is open to interpretation. Daley continued:

Third, the order instructs the 4th and 9th Circuits to “render [their] decision with appropriate dispatch.” This language is highly unusual in a Supreme Court order. It seems to suggest that the justices plan to take the case themselves, and dispose of it as quickly as possible. Timing is especially relevant here. The Court’s current term ends in June, leaving just six months from this writing for briefing, argument, and deliberation.

Here again, whether the court’s language was unusual or not, it may be a leap “to suggest that the justices plan to take the case themselves.” But it’s not unprecedented.

The high court isn’t above taking a lower court to the woodshed when warranted. It did so last month in a unanimous decision on an employment dispute. And Daley may be spot on here — the court may very well have done so this time as well.

In any case, the order is another victory for Trump. Perhaps even more importantly, it’s a victory for judicial restraint and a defeat for judges who see the judicial branch’s role in political terms.


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Michael Dorstewitz

Michael Dorstewitz is a writer for the Conservative Institute. He is an attorney and a former U.S. Merchant Marine officer. His writing can also be seen at BizPac Review and NewsMax.