Most coverage of the Court today will celebrate its ruling on grandmas, criticize its ruling on refugees, and remark on the persistence of a cross-ideological “middle ground” in the travel ban litigation. Some will wonder if the Court intends to continue splitting every difference in this case, ensuring that neither Trump nor any plaintiff ever gets to claim total victory. Others will note that the Court has yet to offer one iota of reasoning on the merits—despite now having made two major decisions in the case—and will add that the Court may never resolve the underlying constitutional issues (since it has participated in the creation of a scenario that could allow mootness to thwart plenary review).

I’d like to make a slightly different point: The Supreme Court is now a co-owner and co-author of the travel ban. That grows truer every time it tinkers with minutiae of this cruel, unjustified policy. And with that position comes major institutional risk to the Supreme Court’s public legitimacy.

Last month, presented with an opportunity to block the travel ban outright or let it go into effect, the Court compromised. On its own initiative, the Court announced a brand new standard to govern who may be excluded under President Trump’s order. That standard wasn’t especially clear and wasn’t rooted in a settled body of precedent (or practice) that could give it content. Moreover, that standard wasn’t explicitly defined or justified by reference to any view of who has standing or whose claims are meritorious. Instead, the Court engaged in a raw display of federal judicial power, all in sole reliance on its equitable authority relating to injunctions.

In fairness, considering the full (and fraught) context of its ruling, there is a lot to be said for the Court’s approach. As Daniel Hemel wrote on this blog:

For better or for worse, the spirit of compromise trumped the letter of the law . . . .  Personally, I’m not too upset about the majority’s decision to fiddle with the stay standard if that’s what it took to reach the result it did. A few appellate lawyers and law professors will notice the deviation from the four-factor stay standard and will attribute it to intra-Court politics. Most Americans will see an evenhanded decision that commands the support of Democratic and Republican appointees alike. At the end of the day, the institution comes out looking better, and [the law governing stays] comes out a bit battered.

But there were also major downsides to the Court’s decision, which in my view have not been sufficiently appreciated—and which are now even more relevant to any assessment of how the Court has handled this litigation.

First, as the Court itself has said time and again, judges must proceed with extreme caution before dictating the details of national security policy. It’s one thing to say that an order is shot through with animus and cannot go into effect; it’s quite another to essentially re-write the order, allowing some parts of it to operate while blocking others.

Any national security policy worthy of the name should reflect a complex and finely balanced series of judgments made by experts in the political branches. Taking a judicial red pen to executive orders supposedly justified by national security concerns is thus very risky business, well outside the Court’s institutional competence. (Of course, if the Court didn’t think the order was in fact based on national security concerns, it should have upheld the stays in their entirety.) While the Court’s ruling on grandmas was welcome, let’s not forget that justices are now sitting in the Marble Palace drawing (and re-drawing) lines in family tree diagrams—and in so doing they are dictating the scope of the travel ban. It likely would have been far more prudent to block the whole thing and let the Executive draft a new order. Certainly it is difficult to see how the travel ban as revised and delayed by the Court achieves any of the (many, shifting, and doubtful) purposes identified by Trump for restricting entry from these nations in the first place.  

Second, as the Supreme Court gets drawn deeper into the weeds, it also bears more institutional responsibility for this policy. When the revised travel ban was first issued and implemented, it belonged wholly to the Trump Administration. But since then, despite lower court rulings to the contrary, the Supreme Court has allowed Trump’s order to go into effect; it has then defined what parts of it could go into effect; and it has then clarified which parts of those parts may go into effect. I’m reminded of the Court’s unsavory multi-year adventure in revising, then blocking, then revising again the Executive’s regulations governing access to contraception coverage under the Affordable Care Act. These are treacherous waters.

The American public might be mistaken for viewing the currently-operative version of the travel ban as a joint venture of the Executive Branch and Judiciary. There comes a point where the justices have so tightly intertwined themselves with the travel ban that they own it as policy, and we are fast approaching that point (if we haven’t already reached it). As I’ve written elsewhere about the original travel ban, “[c]ourts should not allow themselves to become agents of the Trump administration in yet another round of detailed, half-baked revisions to this unlawful executive order.”

Third, these developments pose a serious institutional risk for the Court. The most extreme risk is that there will be an act of terrorism by somebody who would have been excluded under Trump’s full executive order, but who was allowed into the United States by the Supreme Court. In that event, it seems safe to assume that Trump will spend months (even years) bashing the Court for its interference. A less visible—albeit equally important—risk is that people will suffer and die in foreign lands who would have found sanctuary in the United States, but for the Court’s unwillingness to block Trump’s order in its entirety. As the Court continues to entangle itself with the revised travel ban—which, by all accounts, is truly a dumpster fire of immigration/security policy—it assumes the risk that (entirely foreseeable) consequences of that policy will be laid at its marble doorstep.

Fourth, all of these concerns are exacerbated by the fact that the Court has yet to offer any merits-based legal justification for its decisions. As we’ve learned in recent years, the public has a surprisingly high tolerance for life-altering decisions by the Court unaccompanied by reasoning. (Will Baude has written about this in relation to the shadow docket.) But as the Court steps further out on a limb partly of its own creation, the absence of public reasoning will become more problematic—and may expose the Court to far greater risk in the event that a tragedy is blamed on it. That will remain true even if the Court never actually rules on the constitutional merits.

Finally, as Leah Litman has emphasized, the Supreme Court has acted in full awareness of the bad faith that motivated the travel ban in the first place, that remains characteristic of this administration, and that most recently led Trump to accept a ridiculous interpretation of the Court’s own order.  See generally #GrandmaBan. As we have learned, if you give Trump an inch, he’ll take a yard—and then insist that he originally owned that beautiful inch, too (and how dare you suggest otherwise!). In that context, the Court’s difficult balancing act may presume too much of the Executive, which will declare every ruling a victory, read the Court’s orders with a miserly eye, and then throw the Court under the bus the second Trump sees value in doing so.

In sum, the Supreme Court’s latest ruling leaves it in a dangerous position. It is now the co-owner (and ongoing co-author) of a travel ban that sprang from an anti-Muslim campaign promise and makes no conceivable sense as policy (especially as revised by the courts and delayed in implementation). The Court has reached that position without addressing the merits, and through a process that may ensure it never does so. And if anything goes awry, the Court will be exposed to attacks that may cause it lasting harm.

There is value in compromise, especially in this heated environment. The Court’s original order achieved a great feat in lowering temperatures around an explosive issue. Its latest balancing act might do the same. But there is a price to be paid amid all this tightrope walking. And while we don’t yet know what that price will be, or when it will come due, I truly worry that the Court has gambled its legitimacy on a path that could easily collapse under it. 

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