Lawrence Hurley, Andrew Chung, Reuters, April 25, 2018
The U.S. Supreme Court’s conservative majority appeared poised to hand President Donald Trump a huge legal victory, signaling on Wednesday it was likely to uphold his contentious travel ban targeting several Muslim-majority countries.
Conservative justices including Chief Justice John Roberts and Anthony Kennedy, a frequent swing vote on the nine-member court, indicated during arguments in the high-profile case their unwillingness to second-guess Trump on the national security justifications offered for the policy.
But with five conservatives on the nine-member Supreme Court, Trump seemed likely to be on the winning side when the justices issue their ruling by the end of June.
“My only point is that if you look at what was done, it does not look at all like a Muslim ban,” Conservative Justice Samuel Alito said.
Some of the four liberal justices expressed sympathy toward Hawaii’s arguments, although it appeared possible at least one might eventually side with Trump.
The high court in June and December 2017 allowed two versions of the ban to take effect while court challenges ran their course. The justices had not until Wednesday heard arguments on the merits of the policy.
Roberts questioned whether the president could be restricted from taking “any targeted action” on foreign policy emergencies, such air strikes in Syria, affecting Muslim countries.
“Does that mean he can’t because you would regard that as discrimination against a majority-Muslim country?” Roberts asked.
Kennedy, who sometimes joins the liberals in major rulings, pushed back on the notion pressed by the challengers that the ban was permanent, noting that the policy includes a requirement for reports every 180 days that could lead to the removal of a targeted country.
Trump’s conservative appointee to the court, Neil Gorsuch, suggested the lawsuits challenging the ban brought by Hawaii and others should not even have been considered by courts.
Trump administration lawyer Noel Francisco said comments the president made as a candidate should be off-limits from court scrutiny because he had not yet taken office.
Kennedy signaled courts should be able to review candidates’ words, giving the example of a local mayor who makes discriminatory statements and then two days after taking office acts on them.
Liberal Justices Elena Kagan and Justice Sonia Sotomayor pressed Francisco on what kind of campaign trail behavior could be considered by courts. Kagan asked whether a hypothetical “out-of-the-box,” vehemently anti-Semitic candidate would be subject to court review if upon taking office he announced policies targeting Israel.
But Kagan also acknowledged the administration’s concerns about courts judging national security decisions.
Venezuela and North Korea also were targeted in the current policy. Those restrictions were not challenged in court.