While President Trump celebrated the Supreme Court's partial lifting of the block on his travel ban this week, it may not have been the total victory he desired and championed on Twitter.
The Supreme Court on Monday agreed to hear the travel ban litigation and said the Trump administration could start blocking foreign nationals from the six Muslim-majority countries specified in Trump's revised executive order who lack "bona fide" relationships with U.S. residents or entities.
Right-leaning legal scholars were quick to celebrate the Supreme Court's action. The libertarian Cato Institute's Ilya Shapiro said the Supreme Court's action could "only be seen as a big win for the Trump administration."
"There may be lower-court litigation in coming months over the meaning of the 'bona fide relationship' to an American person or entity that exempts someone from the travel restriction," Shapiro said in a statement. "At the end of the day, and regardless of the policy merits of the executive order – which doesn't seem well-crafted to address security concerns, but I, like the judiciary, lack access to classified information – the Supreme Court doesn't seem likely to be swayed by the idiosyncratic atmospherics (campaign speeches, tweets, and all) and will instead focus on a close textual reading of the laws at issue."
Trump's Justice Department asked the high court to review the travel ban litigation and remove the blockades of the ban put in place by the 4th and 9th circuit courts of appeals.
In keeping the blockade of Trump's travel ban, the 9th Circuit Court of Appeals referenced Trump's tweets about the travel ban in its ruling. Similarly, the 4th Circuit Court of Appeals cited then-candidate Trump's "Statement on Preventing Muslim Immigration" in its decision to block the ban. Trump's Justice Department has taken an opposing view — that such campaign rhetoric should not matter. The Supreme Court did not mention any of Trump's statements in its Monday order.
Neal Katyal, the attorney who argued against Trump's travel ban on behalf of Hawaii before the 9th Circuit, said he was "surprised" to hear the president celebrate the high court's decision.
"Honestly, if the president wants victories like this, we'll give them to him," Katyal said in an interview with MSNBC after the ruling.
Joshua Blackman, a South Texas College of Law professor, said he chuckles at the commentators who view the high court's action as a defeat for Trump.
"Every single court's ruled against him; this is the first favorable ruling he's gotten yet," Blackman said.
"I think, at a minimum, the Supreme Court turned down the temperature and signaled that this is not the sort of slam-dunk, no-brainer case, where Trump has to lose."
Blackman also acknowledged that the 4th and 9th circuit judges who issued the previous rulings on the travel ban now can decide who fits the description of having a "bona fide" relationship with someone in the United States.
Justice Clarence Thomas appeared to warn of this possibility in a separate opinion joined by Justices Samuel Alito and Neil Gorsuch that concurred in part and dissented in part from the Supreme Court's decision.
Thomas wrote of his "fear" that the high court's solution of determining which individuals have a "sufficient connection" to the United States would prove "unworkable." Thomas wrote that a "flood of litigation" would result from the Supreme Court's decision, and Blackman said he agreed.
But some think the Supreme Court provided clues that it may side with the lower-court judges who expressed skepticism of their circuit's rulings.
Georgetown University law professor Bill Otis called the Supreme Court's action "obviously a win for the Trump administration." He said the high court's decision suggested that the Supreme Court saw merit in a contrarian view from a Ronald Reagan-appointed judge to the 4th Circuit Court of Appeals.
"It suggests, although it does not at this stage prove, that the high court sees merit in Judge [Paul] Niemeyer's view in the Fourth Circuit," Otis said in a statement. "Judge Niemeyer thought it would be odd and over-stepping for the courts to overturn an admittedly valid exercise of presidential power to protect national security based simply on how press reports characterized the president's subjective attitude."
The question of whether the case will become moot before the Supreme Court's next term begins in October remains an open question. The ban imposed by the president had an expiration date set for 90 days after the order's effective date. In granting the case Monday, the Supreme Court directed both sides to explain whether the case already became moot in June. In the run-up to the October oral arguments, additional bickering over the issue of mootness looms large.