Oral Argument in Trump v. Hawaii/Travel Ban Case
Here is the audio to the oral arguments in the Supreme Court in the travel ban case (Trump v. Hawaii) this morning. The transcript is here. Reports (and here) see the Court as upholding the travel ban. Amy Howe agrees in her recap of the argument. Commentary is abundant.
As always, it is hard to speculate abut how the Supreme Court will decide a case based on the oral arguments. Prognosticators famously (and wrongly) declared the Affordable Care Act dead after the Court heard arguments.
I listened to the audio of the arguments and am worried that the ban may be upheld. However, I am not certain that hope is lost. The deciding vote in favor of the immigrant in Sessions v. Dimaya, Justice Gorsuch raised questions about justiciability and the propriety of a nationwide injunction, which could lead to a narrow majority holding of limited impact.
There was nothing that surprising in the arguments. Justice Kagan, as well as Justice Sotomayor, seemed worried about the potential for invidious discrimination if the Court upheld the travel ban. (I was happy that Solicitor General Francisco in response to Justice Kagan’s hypothetical did not invoke The Chinese Exclusion Case or Korematsu v. United States in defense of the decision of an anti-Semitic President to bar admission of noncitizens from Israel.). The Chief Justice, Justice Kennedy, and others seemed concerned with intervening in the President’s decision on a national security matter.
KJ