SCOTUS dispatchIs the Supreme Court softening on Donald Trump’s travel ban?

ON THE eve of two appeals court hearings on the third version of Donald Trump’s travel ban, the Supreme Court stepped in to give the Trump administration a major, if temporary, victory. In a pair of curtly worded orders released on December 4th, the justices granted the administration’s wish to allow Mr Trump’s September proclamation limiting foreign travel to America to take full effect pending the lower-court proceedings. But they urged each appeals court to “render its decision with appropriate dispatch” following this week’s hearings. The justices also hinted that if Mr Trump’s travel ban reaches their courtroom, a majority may be unreceptive to arguments it should be struck down as executive overreach or a violation of the constitution.

The order at issue followed two earlier attempts to ban travel from six majority-Muslim countries in January and March. Mr Trump’s first two orders encountered judicial resistance at district and circuit courts on both coasts. When the second order expired this autumn, Mr Trump replaced it with a slightly more targeted bundle of restrictions and expanded the list of affected nations to eight. In an apparent attempt to smooth its traipse through the courts, the administration added two non-Muslim countries: North Korea and Venezuela. Five countries remain from travel ban 2.0: Iran, Libya, Somalia, Syria and Yemen. Sudan has been removed, replaced with Chad.     

The new formula did not persuade district court judges. In October, the same judges in Hawaii and Maryland who froze the second travel ban issued injunctions against the third. Judge Derrick Watson wrote that the latest incarnation of the ban—which challengers trace to the “total and complete shutdown on Muslims entering the United States” Mr Trump called for two years ago on the campaign trail—“suffers from precisely the same maladies as its predecessor”.

But the changes have apparently led to a change of heart at the Supreme Court. In June, when the Supreme Court first entered the fray, it permitted the second ban to go into effect for everyone except people living abroad with "bona fide" connections to people or institutions in America. The order was accompanied by several pages of explanation and justification and included a separate opinion from Justices Clarence Thomas, Samuel Alito and Neil Gorsuch—who would have blessed Mr Trump’s order unreservedly, if provisionally. The order on December 4th offered no explanation for the court’s decision. Just like that, the compromise move from the summer—which some lower courts were quoting and applying with the litigation over the newest ban—is no more. 

When the Supreme Court scheduled arguments in the lawsuits over the second ban for its October calendar, many court-watchers predicted a closely divided court splitting ideologically 4-to-4 with Justice Anthony Kennedy a toss-up. Now, with only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissenting (without an opinion) from the new order, it seems Justices Stephen Breyer and Elena Kagan, two liberal-leaning jurists, have joined Justice Kennedy on the conservative end of the ban. That line-up, together with the justices’ call to the circuit courts to respond quickly after their hearings on December 6th and 8th, means the Supreme Court wants to act fast. If a request for an appeal comes their way, the justices are poised to order briefing, grant the case in early January and decide it before the end of June.

In the meantime, as many as 150m people worldwide—most of them Muslim—are now prohibited from travelling or emigrating to America, whether or not they have family waiting for them. The Trump administration is cheered; as a White House spokesman put it: “We are not surprised by today’s Supreme Court decision permitting immediate enforcement of the President’s proclamation limiting travel from countries presenting heightened risks of terrorism”. The spokesman continued: “We look forward to presenting a fuller defence of the proclamation as the pending cases work their way through the courts.” The American Civil Liberties Union (ACLU) saw the case differently. “This is not a ruling on the merits”, the ACLU tweeted, pointing out that the Supreme Court’s move was just a stay and not a full ruling. Despite increasingly long odds of reining in the president’s power to keep purportedly dangerous people outside America, the ACLU is not backing down. “We continue our fight”, the organisation says.