Amy Howe, one of the most astute observers of the Supreme Court, was in the room for the oral argument over Trump’s travel ban (the second one, which superseded the initial one) and says that it’s likely the court will uphold the policy by showing deference to the president on national security matters.
Today the Supreme Court heard oral argument on the legality of the September 2017 order, in one of the most anticipated sessions in recent memory. After over an hour of debate, a majority of the court (and perhaps even a solid one) appeared ready to rule for the government and uphold the order in response to concerns about second-guessing the president on national-security issues…
Arguing on behalf of the Trump administration, U.S. solicitor general Noel Francisco emphasized that the September 2017 order was the result of a lengthy “world-wide multi-agency review,” which prompted the Department of Homeland Security to recommend that the president restrict travel to the United States by travelers from countries that had failed to meet minimum standards for providing information that can be used to vet those travelers…In the end, the government may not get the votes of either Breyer or Kagan. But it’s worth remembering that, when the justices granted the government’s request last December to be able to enforce the full set of restrictions in the September 2017 order while its appeals moved forward, only two justices – Ginsburg and Sotomayor – publicly disagreed with that decision. That would have given the government reason to be optimistic, and today’s argument might have reinforced that optimism: Although it’s always risky to make predictions based on the oral argument, it’s difficult to see how Hawaii can pick up the five votes that it needs to strike down the president’s order.
It’s interesting that the attorney arguing against the travel ban was Neil Katyal, who was Justice Kagan’s assistant when she was Solicitor General and took over that job when she was named to the Supreme Court. He’s a very good appellate attorney, but Howe seems convinced that the vote could end up being as strong as 7-2 to uphold the ban. It’s hard to argue with that prediction.