AMERICA’S federal courts have been nearly unanimous in blocking or limiting Donald Trump’s presidency-long quest to keep refugees and travellers from six Muslim majority nations out of the country. But over the past four months, the Supreme Court—which is set to hear arguments on the legality of the ban on October 10th—has handed Mr Trump three temporary reprieves from his losses in the lower courts. The latest came in the form of a stay by Justice Anthony Kennedy on September 11th.
Even a brief sketch of the litigation over Mr Trump’s ban taxes the layman’s attention span. Here’s a thumbnail version: In June, the justices let the ban go into effect for foreigners and refugees lacking “bona fide” relationships with people or entities in America. In July, after a district court in Hawaii rejected the Trump administration’s narrow interpretation of that ruling—according to which most refugees and family members (like grandparents) do not qualify as “bona fide” relations—the Supreme Court deferred, temporarily, to part of the government’s view. They said Mr Trump’s sweeping ban on refugees (though not its anti-grandma policy) could go into effect pending review by the Ninth Circuit Court of Appeals. Days ago, the Ninth Circuit finally weighed in, siding with the ban’s challengers regarding both family members and refugees. This spurred Mr Trump’s lawyers to march back to Justice Kennedy, who handles emergency stay applications from the Ninth Circuit. The administration relented on familial relations but argued that suddenly permitting a wave of refugees to enter America would “disrupt the status quo and frustrate orderly implementation” of Mr Trump’s plans.
Sometimes, justices refer these matters to their colleagues before deciding whether a stay should be granted; here, Justice Kennedy did not. Acting alone, he blocked implementation of the Ninth Circuit’s ruling until his colleagues could consider both sides’ arguments. The question is whether a formal assurance from a refugee-resettlement agency establishes a “bona fide relationship” between a potential refugee and an American entity. Mr Trump’s lawyers insist that if such assurances were to suffice, “the government, which has a paramount interest in safeguarding national security” would be “irreparably injure[d]”. The Ninth Circuit had disagreed, reasoning that an agreement to settle a refugee clearly forges a connection between an American organisation and a foreigner seeking refuge. “Refugees’ lives remain in vulnerable limbo during…the Supreme Court’s stay,” the judges wrote. “Refugees have only a narrow window of time to complete their travel, as certain security and medical checks expire and must then be reinitiated.”
Justice Kennedy’s pause on the Ninth Circuit’s ruling is just a placeholder until he, or, more likely, the full Supreme Court (on which he is likely the swing vote in this matter), decides on the scope of the refugee ban. Given his record, says Josh Blackman, a law professor at the South Texas College of Law, Justice Kennedy is likely to side with Mr Trump: the 81-year-old justice, who is expected to retire within a year or two, typically reverses rulings that, in his eyes, merit a stay.
Early on September 12th, the challengers filed their response to the latest request for Supreme Court intervention, noting that the Ninth Circuit had “faithfully” applied the justices’ order and criticising the Trump administration’s call for a “complex factual inquiry” second-guessing the lower-court’s decision. The Supreme Court should eschew Mr Trump’s demand to “devote its immediate attention to ensuring that every possible refugee is excluded”, the challengers argued. Now that the briefs are in, we should know soon—possibly within hours—what the Supreme Court decides to do with 24,000 people awaiting refugee visas. And on October 10th, the Delphic justices will give us more of a sense of their thinking when the oral argument transpires in Trump v International Refugee Assistance Project.
Puzzles lie ahead. The Supreme Court agreed to review whether the whole matter is moot, given that Mr Trump’s order in March (which didn’t take effect until June) may technically have expired over the summer. Oddly, it not ask the parties to address the fact that the 90-day ban on foreigners from six Muslim countries undoubtedly expires in late Septmeber—before the Supreme Court even considers its legality. The 120-day refugee ban, meanwhile, will remain in effect until October 27th, just 17 days after the hearing. If the Trump administration renews the entry ban after it expires on September 27th or signals that it will extend the refugee ban, there will be good reason for the justices to review lower-court rulings against the order. But if no policy remains in place, one wonders why a limelight-shy Supreme Court would care to dive headlong into one of the most contentious issues of Mr Trump’s presidency. It may be the justices are waiting to see what Mr Trump does next. If he lets the bans dissolve on their own, the Supreme Court might be happy to cancel their October 10th affair and let the order meet its end with a whimper, rather than a bang.