Commentators such as Ariane de Vogue of CNN and David French of National Review suggest this could indicate that the justices are likely to uphold Travel Ban 3.0 when and if the issue gets to the Supreme Court. They certainly could be right. But the long-term significance of today’s ruling is far from clear.
The two almost identically worded orders contain virtually no legal analysis. So it is hard to say what motivated the seven justices in the majority (Ruth Bader Ginsburg and Sonia Sotomayor dissented).
A particularly likely candidate is the “irreparable harm” requirement. It is striking that today’s orders note that “In light of its decision to consider the case on an expedited basis, we expect that the Court of Appeals will render its decision with appropriate dispatch.” This is a reference to the decisions of the US Courts of Appeal for the Fourth Circuit and Ninth Circuit to consider the two trial court rulings on an expedited basis. Given this accelerated schedule, it could be that the seven Supreme Court justices who voted for today’s orders believe that the two cases will be decided so quickly that not enough time will have passed for the plaintiffs to suffer any irreparable harm in the meantime.
It could also be that the seven justices disagree among themselves about the reasons for lifting the preliminary injunctions. At the very least, I am skeptical that liberal Justices Stephen Breyer and Elena Kagan really believe that the case against Travel Ban 3.0 is utterly without merit. Yet they were among the seven who voted for today’s orders. The Court’s failure to present any legal analysis justifying its rulings may represent an attempt to paper over disagreements within the majority.
I also believe that today’s orders are misguided. As I see it, the two trial court rulings make a strong case that at least some of the plaintiffs meet all four requirements for a preliminary injunction. But the jurisprudence of preliminary injunctions is very far from an exact science, and there is a great deal of room for judicial discretion.
The Fourth and Ninth Circuits will soon hear the administration’s appeals of the trial court rulings against the travel ban. If, as seems likely, one or more of the appellate courts also rules against Trump, the issue may soon return to the Supreme Court.
At this point, it is difficult to tell what motivated today’s rulings. We may not know for certain unless and until the Supreme Court considers Travel Ban 3.0 on the merits. Today was a notable victory for the administration. But the legal battle over Travel Ban 3.0 is far from over.