Liberal and conservative legal experts looking ahead to the next Supreme Court term are preoccupied with much different priorities, but both question whether the high court will decide the fight over President Trump's travel ban.
The issue of whether the travel ban litigation could become moot before the high court hears oral arguments is unresolved, but liberals also appear to be wondering who will be sitting on the high court next term. For liberals, rumors of Justice Anthony Kennedy's potential retirement and role on the high court still dominate their thinking about the future of the Supreme Court.
Erwin Chemerinsky, new dean of Berkeley Law at the University of California, said Thursday that the Supreme Court "is still the Anthony Kennedy court." Speaking at the National Constitution Center's review of the high court's most recent term, Chemerinsky noted that Kennedy "voted in the majority on 97 percent of all of the decisions," more often than any other justice.
"So for the lawyers who're here and watching, if you have a case before the Supreme Court, my advice to you is make your briefs a shameless attempt to pander to Justice Kennedy," Chemerinsky said. "If the clerk of the court will allow it, put Anthony Kennedy's picture on the front of your brief."
While Chemerinsky said he thinks Gorsuch may prove to be more conservative than the late Justice Antonin Scalia, whose seat Gorsuch filled in April, "if Justice Kennedy leaves the court, then we will have the most conservative court there's been since the mid-1930s."
Frederick Lawrence, Yale Law School professor who sat alongside Chemerinsky at the event, said the year has been characterized by "constitutional anxiety" for "constitutional lawyers, constitutional scholars and for citizens who care about the Constitution."
"I certainly will watch with my constitutional anxiety this October in the [travel ban] argument because I think ... there is so much vagueness in play in the joints here that when one finds oneself sort of hoping for mootness as the way out, it tells you the corners we're getting ourselves into," Lawrence said.
At the Heritage Foundation's review of the last term on Thursday, legal experts were similarly questioning whether the high court would resolve the travel ban dispute.
Will Consovoy, a former law clerk to Justice Clarence Thomas and a lawyer who argues before the Supreme Court, said "mootness is a real concern" in the travel ban case. He added that he thought the high court, more so than the lower courts that have reviewed the case, would look to say "can we create a durable rule here that's not going to devour the law, so to speak."
Trump's travel ban blocks nationals from six Muslim-majority countries from entering the U.S. for 90 days and refugees from all countries for 120 days.
Joseph Palmore, a former law clerk to Justice Ruth Bader Ginsburg and co-chairman of the Appellate and Supreme Court Practice Group at Morrison Foerster, told the Heritage Foundation audience that the issue of mootness is clearly a top issue for the high court.
Asked whether the Supreme Court could hear the case even if it appears to be moot from the vantage point of those outside the justices' chambers, Palmore said that's a question that likely would lurk.
"The court might view it though as what's before us is this actual executive order and if it's moot then those issues could be fought another day, but I think ... there might be a competing urge to the extent that some justices are concerned with what they might see as the overbreadth of some of the court of appeals decisions," Palmore said. "Do they leave those in place because the Supreme Court case becomes moot or do those get vacated? There's a lot of complicated rules, what happens when a case becomes moot."
Palmore said he also is closely watching to see how Trump's campaign statements can be attributed as motivation to enact the travel ban — if at all — and whether the lower courts appropriately applied nationwide injunctions.
Palmore said the last pressing question is whether the dispute could return to the Supreme Court in the "next few weeks or even days" because of the disagreement over the scope of the injunction. The Supreme Court, in deciding to take the case, said that nationals from the six countries could visit the U.S. if they have "bona fide" relationships in the country.
The fight in the federal courts over the extent of the travel ban permitted by the Supreme Court began earlier this week.