Why Do Trumpsters Still Think The Supreme Court Will Save The Muslim Ban?
Without a circuit split, I see no reason SCOTUS would touch this case.
The Fourth Circuit Court of Appeals blocked Donald Trump’s Muslim ban, again. Technically, the court simply declined to lift its block of the original ban, despite Trump’s efforts to save his ban with the release of “Travel Ban 2.0.”
Chief Judge Roger Gregory delivered the opinion on of the court. It’s interesting to note that Gregory was a recess appointment made by President Bill Clinton after the Senate refused to confirm his nominees. President George W. Bush then renominated Gregory after he took office. Once again, nobody has helped GWB’s legacy more than Donald J. Trump.
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In his opinion, the 4th Circuit’s chief judge, Roger Gregory, wrote that although the president has been granted broad power by Congress to deny entry to foreign visitors, “that power is not absolute.”
“It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation,” Gregory wrote.
Trump is said to be ready to appeal the ruling to the Supreme Court.
Here’s my question: why? Why would do the Trump people think the Supreme Court would rule any differently? At this point, why does Trump think the Supreme Court will even take the case?
There isn’t a “circuit split,” folks. The Supreme Court needs to step and rule in situations where the different circuits are coming to different opinions on cases of federal law. THAT AIN’T HAPPENING HERE. Circuits seem pretty uniform in their “yeah, but this is just racist” opinions.
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One might even argue that it is “well-settled law” that the president cannot deny entry on the basis of religious bigotry.
For the Supreme Court to take that case, there’s got to be something that at least four of them want to talk about. Let’s assume for the sake of the argument that the four progressives are cool watching Trump get broken like a misbehaving dog by the lower courts. You’re really telling me that there are four conservatives who want this case?
Why would they? Either they get to take the extraordinary opinion that the religious liberty we thought this country was founded on is a farce, and that the president — this president in particular — can do pretty much anything he wants as long as he calls it a “security” measure. Which one of these conservatives is signing up for that? Which one of these conservatives is signing up to write the next “Korematsu” decision, and a gigantic grant of executive power to boot?
And that’s if they “win.” If they take the case, but can’t convince both Justice Anthony Kennedy and Chief Justice John Roberts that the Muslim ban is cool, then one of them has to go through the whole “I’m defending religious discrimination in an opinion that will age like room-temperature cheese,” only this time, in the dissent! Who wants to go on the record as “I know we lost, but I just want to point out that I hate Muslims and children fleeing from war. Heil Trump!”
I don’t want to sound foolish, but I think the Supreme Court just isn’t that stupid. You’ve got people playing for history up there. Their legacies are about the only things left for them to be concerned about. None of them wants this case on their head. Chief Justice Roberts doesn’t want to touch this case with Justice Scalia’s dead member. You’re telling me that Justice Neil Gorsuch wants the first well-known opinion of what is likely to be a long career on the high court to be “I was told that I could not have this job unless I agreed to ban Muslims so, fine.”
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If there were a circuit split, I could see this going to the Supreme Court. At that point, Justices Ginsburg and Sotomayor are sharpening knives and screaming “bring it on, boys” at Trump’s attorneys. If there were a circuit split, the liberals would force Chief Justice Roberts and Justice Kennedy into the impossible position of voting with their “team” (Republicans) or their “team” (the Constitution of the United States of America). I don’t know how those guys would fall, but they’d have to pick a side.
Without a split, I just don’t think they have five solid votes to give Trump unbridled executive power to turn people away based on his personal bigotry. And if they don’t have five reliable votes to overturn the circuits, I can’t see why they’d mess with this issue at all.
I could be wrong. I’ve been deeply disappointed by Justice Kennedy and Chief Justice Roberts before. But, guys, I just don’t see it. I can’t see why the conservative Supreme Court justices would want to bring this upon themselves.
A federal appeals court just upheld a nationwide block on Trump’s travel ban [Business Insider]
Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.
