Right-leaning legal scholars are optimistic that President Trump's administration will like the result if the Supreme Court decides the travel ban case in its next term.
The Heritage Foundation's John Malcolm, who helped develop Trump's lists of candidates for the recent Supreme Court vacancy filled by Justice Neil Gorsuch, wrote that early signs bode well for Trump in a post at SCOTUSblog.
"Although predicting the final outcome of a case is always a perilous undertaking, I believe [how the high court took the case] bodes well for the president," Malcolm wrote. "After all, the court decided to take up the issue even though there was no circuit split, and it granted certiorari shortly after asking the parties to brief the matter on an expedited basis. If the president ultimately prevails, that should be welcome news for those who value the rule of law and separation of powers."
The high court agreed to hear the travel ban litigation at the end of the most recent term and allowed a limited version of Trump's travel ban to begin. It lifted various federal appeals courts' blockades of Trump's ban "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States," although the scope of that decision is now being adjudicated in lower federal courts.
The second executive order at issue sought to thwart the entrance of all nationals from six Muslim-majority countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen.
Josh Blackman, a South Texas College of Law professor, wrote Wednesday for SCOTUSblog's symposium on the travel ban litigation that it's difficult to predict precisely how the justices will rule on the merits based upon the actions they have taken thus far. But he likewise thinks the tea leaves available for reading point to outcomes desirable for Trump's team.
"Based on the practices of the Roberts court, however, the posture of this case would generally signal a reversal of the lower courts," Blackman wrote Wednesday. "Specifically, since Chief Justice John Roberts joined the Supreme Court in 2005, when the court grants a stay of a lower court decision and grants the petition for a writ of certiorari, in 22 out of 24 cases, the ultimate disposition is reversal, at least in part. As a general rule, when Justice Anthony Kennedy does not dissent from the grant of a stay and certiorari is granted, the lower court will not stand."
Kennedy did not dissent from the high court's grant of the travel ban case. But University of California, Irvine law professor Leah Litman, a former Kennedy law clerk, wrote for SCOTUSblog's symposium that she thinks the court is unlikely to decide the travel ban case.
"[I]t's likely we've already heard the court's last and only words (which were no words at all) on the merits," Litman wrote. "That's because the case will likely be moot by the time the court hears argument in the fall, or reaches a decision."
The order is only set to be in place for 90 days, and Litman argued that the temporary nature of the executive order being debated will expire before arguments could begin. That could mean that "the most interesting part of the case may be how much the organizations that are involved in the case, and particularly the government, push the court to say... something on the merits."
Blackman likewise wrote that he thought "the case will likely become moot by the time argument is held" after the start of the term in October, but noted "there very well may be a third, permanent executive order issued over the summer" by Trump.
"[W]ere the court to rule on the merits of the case after oral argument, a reversal [of lower courts' rulings against Trump's ban] would be more likely than not," Blackman wrote.