With the Justice Department petitioning the Supreme Court to review the travel ban litigation, legal experts are debating if the high court will take the case.
The Trump administration asked the high court late Thursday to review the travel ban and sought to remove existing blockades of the ban via separate filings aimed at federal appeals courts.
Trump has issued several executive orders attempting to implement a ban, with the second one preventing nationals of six Muslim-majority countries — Iran, Libya, Somalia, Syria, Sudan and Yemen — from entering the country for 90 days. A federal judge in Maryland blocked that provision. The government appealed to the 4th Circuit Court of Appeals in Richmond, Va., which decided to keep the blockade of the travel ban in place. Separate litigation over the ban is pending before the 9th Circuit Court of Appeals on the West Coast.
What happens next remains a guessing game among court watchers, but doubts persist about whether the merits of the ban will ever reach the high court. Legal experts are divided about how the Supreme Court may choose to tackle the travel ban. Leah Litman, University of California, Irvine law professor and former clerk to Justice Anthony Kennedy, argued that giving the Justice Department what it has requested — a stay that would lift the blockade of the travel ban and a grant of review by the Supreme Court — could render the case moot.
The time that would elapse between lifting the block and the Supreme Court's hearing the arguments, Litman told the Washington Examiner, could surpass the length of the 90-day ban. Or if the court denied the government's request to lift the block, Litman said the case could be moot because 90 days would have passed since the order's effective date. If Trump issued amended the order to extend its timeframe, the case might not become moot, Litman said.
Josh Blackman, a South Texas College of Law professor and conservative, said the question of whether the litigation could become moot before the Supreme Court hears arguments on the merit of the ban is not simple. Blackman said he does not find persuasive the argument that the expiration of the timeframe from the travel ban's effective date would render the litigation moot, but added, "even if it is, I don't think it matters."
Blackman thinks the potential for Trump to issue another order, or an amended order, that extends the length of the ban would give the Supreme Court discretion over whether to hear the case. "At that point, if the Supreme Court wants to take the case, it can take the case," Blackman said. "If they want to dump it because it's moot, they dump it because it's moot. It's not clear cut one way or the other."
Legal experts say they think the Supreme Court would not hear arguments before start of the next term in October, given that scheduled oral arguments for the current term have ended. Blackman said he thought the Supreme Court may choose to hear arguments over the ban in September, just before the start of the term, due to the serious nature of the issue.
While it's hard to handicap any case before the Supreme Court, especially one that has not been granted, Blackman said he thinks if the Supreme Court adheres to precedent, Trump would win. He noted that the current court is "the most conservative court that will hear this case."
"The court could change their precedents," Blackman noted. "In that case, it's like trying to predict tomorrow's lottery numbers. If you ask me what were yesterday's lottery numbers, I can tell you with 100 percent certainty what the numbers are. If you ask me what tomorrow's numbers are, I don't know."