//  5/30/17  //  In-Depth Analysis

Last week, the en banc Fourth Circuit largely upheld a district court order blocking President Trump’s revised travel ban (a.k.a. the Muslim Ban). The Government has announced its intention to seek Supreme Court review of the Fourth Circuit’s decision. I assume it will do the same if the Ninth Circuit rules against it, as many expect will soon occur. In this post, I map out the course ahead and conclude that it matters a great deal how and when the Supreme Court ultimately reviews the Muslim Ban.

Before I start, though, it’s important to recall that Trump’s order is unusual in an important respect: it is time-limited.  Section 2(c)—the part blocked by the Fourth Circuit—directs that “the entry into the United States of nationals of [six countries] be suspended for 90 days from the effective date of this order . . . .” The most controversial and legally doubtful part of the order thus expires 90 days after the Muslim Ban goes into effect. This quirk in the order’s shelf life has significant implications.

The Usual Process of Emergency Supreme Court Review

Typically, if a district court blocked an important government program and an appellate court affirmed, the Solicitor General (SG) would race to the Supreme Court with an emergency application for a stay pending certiorari. In other words, he’d ask the Justices to allow the government’s program to remain in effect until the Court had a chance to pass on the decision below. Seven years ago, in Hollingsworth v. Perry, the Supreme Court described the standard it applies to such applications:

[A]n applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.

Put simply, to persuade the Court to stay orders entered by the lower courts, an applicant must show that the Court is likely to grant review and likely to reverse—and that he will suffer immediate, irreparable harm if the lower court orders remain in effect while the Court deliberates. When the SG seeks review of an order blocking a government program, the Court nearly always hears the case, so factor (1) is presumptively met.

Emergency applications are directed to the Justice with responsibility for the relevant Court of Appeals. (Notably, Chief Justice Roberts oversees the Fourth Circuit.) If an application presents a significant or controversial issue, it is circulated to the full Court and the opposing party is invited to file a response. The Court acts quickly on emergency petitions: usually within 5-10 days. It takes five votes for the Court to grant a stay.  The Court almost never holds oral argument on emergency applications, and only rarely publishes reasoned opinions (though frequently one or more Justices will publish statements supporting or opposing the Court’s decision). Will Baude has described and criticized this “shadow docket” at length in an insightful article.  

Often, if the Court decides to grant a stay—in other words, if it decides to suspend the lower court decision pending its own review—eight months or more might elapse until it actually decides the underlying case. That’s because it takes time for the parties to prepare cert petitions; for the Justices to decide whether to grant full review of the case; for the parties to brief and argue their positions; and for the Court to write its opinion.

Why the Muslim Ban Defies the Usual Process

As you may have noticed, the Muslim Ban appeal presents a serious complication: with a time-limited order like this one, there’s really no such thing as a “stay pending certiorari.” If the SG files an application and the Justices grant his request, the Muslim Ban will go into effect, operate for 90 days, and then expire by its own terms. At that point, the litigation will become moot and the Supreme Court will have nothing to adjudicate.

Practically speaking, if the Court stays the district court order blocking the Muslim Ban, that is equivalent to upholding the Muslim Ban on its merits. The only difference would be the lack of full briefing and argument—and, perhaps, the absence of a published Opinion of the Court (though the majority, if it wished, could write an opinion).

Especially given extraordinary public interest in judicial hearings on the Muslim Ban, it would be highly anomalous for the Court to put Trump’s order into effect with only quick, secret deliberations. The fact that this ruling would effectively constitute a final constitutional judgment on the Muslim Ban confirms the imprudence of a rush to judgment. While the Court is accustomed to making life-and-death decisions this way—literally, in the case of pleas to halt executions—the American people might expect more from the Court on this issue of unquestioned national significance.

As Justice Kennedy has observed, the Court plays a vital role in teaching the American people about the meaning of the Constitution. This case raises profound questions about liberty, equality, and the separation of powers. It would be troubling for a majority of the Justices to uphold the Muslim Ban as consistent with our founding principles—and it would be especially troubling for the Court to do so in a hurried and wholly private way, without full briefing and oral argumentation open to the public.[1]

Some will disagree with that view, of course. They will insist that President Trump's order responds to imminent national security threats and that, in all events, the President requires extreme flexibility to thwart terrorism. They will add that lower courts have endangered the nation by second-guessing our President's national security judgment on the basis of wholly improper and unsound psychoanalysis. And they will insist that swift and brutal reversal of the Fourth Circuit is the only appropriate outcome here. I think that every premise of this argument is mistaken, as I've explained elsewhere. In all events, as a procedural matter, instituting the Muslim Ban by granting an emergency application would raise a number of additional, legitimate concerns about the manner in which the Supreme Court decided to address this landmark case. 

But There Are Problems With Denying A Stay, Too

If the Court grants an emergency application, it legalizes the Muslim Ban. But if it denies an application, it essentially guarantees that there won’t be a final judicial resolution of this issue until mid-2018. That’s not great, either, for several reasons.   

Let’s start with timing. The Court will end its current Term by June 30, 2017. If the Court denies an emergency application, the SG presumably will file a petition for certiorari.  Given how long the cert process takes, the Court would consider this petition at the Long Conference—which occurs just before it starts its next Term in October 2017. In the usual course, petitions granted at the Long Conference are argued in January or February of the following year (and this cert petition would be granted). Controversial cases argued in January and February typically are not decided until May or June, especially if there are multiple concurrences and dissents.

So if the Court denies an application and the SG seeks cert, it is possible that there wouldn’t be a final decision on the Muslim Ban until June 2018.

Why is this problematic, you ask? 

For starters, the President of the United States and his senior officials have repeatedly advised that they consider this policy essential to thwarting imminent terrorist threats. Even in Trumpland, courts absolutely should take such claims seriously, even if they ultimately conclude that national security was not actually a primary motive (or a motive at all) for Trump’s policy. If the Court were to put off a ruling on Trump’s order until June 2018, it would signal that it doubts his urgent national security claims (or thinks that those claims founder on the ultimate unconstitutionality of his response). More significantly, some might charge that by its own action the Court had undermined Trump’s main defense of the travel ban policy. In general, there are good reasons for the Court to act quickly when the political branches advise that blocked government programs serve compelling interests, such as stopping potential attacks or preserving the flexibility necessary to modify entry policy in response to new intelligence. 

An additional consideration is that the world could change in significant (but hard to predict) ways between now and June 2018. President Trump may further obliterate his claim to a presumption of good faith and regularity; or he may recover that claim by displaying a marked change in seriousness and temperament. There may be attacks that Trump’s order would have stopped, had it been in effect; there may also be attacks attributable, in part, to the anti-Muslim animus that Trump has expressed.[2] The list of possibilities goes on: our relationship with the six nations in the order could be dramatically transformed; intervening judicial precedents might clarify key issues in the case; the Court’s membership could change; Congress could decide to legislate on these questions, etc. The bottom line is that assessing the Muslim Ban in June 2018 may be a very different exercise than it is today, in ways we just can't anticipate. 

Of course, opponents of the order may be happy to wait: it’s illegal and hateful and it’s been blocked, so what’s the hurry in getting it SCOTUS, which might reverse? There are also good arguments for waiting until next year that don't depend entirely on a strong view of the merits. For instance, considering the rapid pace of legal developments since President Trump took office, one might conclude that it'd be virtuous (and educational) to let the judicial process work at its usual, deliberate pace. 

Fair enough. I’m not saying this is an easy question.

But all things considered, faced with this extraordinary order, I think it might preferable to find a middle ground between the Court deciding in secret deliberations next week and the Court deciding with full argumentation in 13 months.

Perhaps the Court Should Hold a Special Session

There is another path, though it’s one that the Supreme Court rarely uses: a special session to consider this one case.

If it saw fit, the Court could set the Muslim Ban appeal for full briefing and oral argument in the next few months and issue a decision by the early fall (or sooner). This would require the Justices to vary from their usual practice of hearing argument only from October through April. It would also require them to enhance the drama of the Muslim Ban judicial proceedings by doing something unusual themselves. But it would strike an appropriate balance between the imperative of full review and the need for speed.

In candor, I doubt the Court will do this. The Justices have been reluctant in recent years to hold special sessions and they may be wary of causing a sensation by doing so here. That said, I hope they seriously consider this option, which would account for a number of significant considerations bearing on the manner and timeliness of their review.  


Disclosure: I am counsel to Constitutional Law Scholars as amici curiae opposing the Muslim Ban 

[1] Some have suggested that the Court might not grant an emergency request from the SG due to fear of causing chaos. On this score, I am skeptical. The Court could stay its mandate, or direct the district court to wait a reasonable period of time, in order to avoid the disaster that occurred when Trump’s first travel ban was unexpectedly announced.   

[2] Needless to say, I sincerely hope that there are no terrorist attacks at all, wholly apart from whatever theory they may prove or disprove. 

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