Judiciary

Supreme Court Will Hear Travel Ban Case

“The Supreme Court announced on Monday that it will decide whether President Trump’s revised travel ban was lawful, setting the stage for a major decision on the scope of presidential power,” the New York Times reports.

“Mr. Trump’s revised executive order, issued in March, limited travel from six mostly Muslim countries for 90 days and suspended the nation’s refugee program for 120 days. The time was needed, the order said, to address gaps in the government’s screening and vetting procedures.”

Politico notes the court “will allow parts of the directive to take effect in the meantime.”

Axios: “Unlike in the original travel ban, travelers with valid green cards and visas will be allowed to enter the U.S., but all refugees from the 6 countries listed will be banned.”

All Eyes on Justice Kennedy

“White House sources think Justice Anthony Kennedy, the Supreme Court’s ideological fulcrum, may announce his retirement today, as the justices gather on the bench for the last time this term,” Mike Allen reports.

“Few domestic developments could more instantly and decisively change the national conversation — blotting out almost everything else, and vastly reducing the sting for conservatives is healthcare tanks.”

David Lat, writing last night: “Based on reports I’ve received from former AMK clerks who attended his law clerk reunion dinner last night, it is highly unlikely that Justice Kennedy will announce his retirement tomorrow.”

Is Anthony Kennedy About to Retire?

Associated Press: “To be sure, Kennedy has given no public sign that he will retire this year and give President Donald Trump his second high court pick in the first months of his administration. Kennedy’s departure would allow conservatives to take firm control of the court. But Kennedy turns 81 next month and has been on the court for nearly 30 years. Several of his former law clerks have said they think he is contemplating stepping down in the next year or so. Kennedy and his clerks were gathering over the weekend for a reunion that was pushed up a year and helped spark talk he might be leaving the court.”

Kennedy Mulls Retiring from Supreme Court

Sources close to Justice Anthony Kennedy tell CNN that he “is seriously considering retirement, but they are unclear if it could occur as early as this term.”

“His departure would cause a seismic shift and offer President Donald Trump a chance to continue reshaping the court. Trump’s first nominee — Justice Neil Gorsuch, himself a former Kennedy clerk — joined the court earlier this year.”

Trump Appeals Travel Ban to the Supreme Court

“The Trump administration Thursday night asked the Supreme Court to reinstate its travel ban blocking entry from six Muslim-majority countries,” CNN reports.

“In its filing, the administration asked the nine justices to consider the legality of President Trump’s executive order, a move that appeals a ruling by the 4th Circuit that upheld a nationwide halt to the ban.”

Trump Embraces Using Judiciary for Political Change

Jeffrey Toobin: “On Monday, President Trump announced his first group of lower-court nominations to the federal bench. The list illustrates how differently Democratic and Republican Presidents have approached the task of making judges: it comes down to ideology versus diversity.”

“Republicans since Ronald Reagan have recognized the power of federal judges to move the country in a conservative direction. Trump’s nomination of Neil Gorsuch to the Supreme Court showed that the new President belongs to the same tradition, and his ten judicial nominees—five to the circuit courts of appeals and five to the district courts—reveal that he will continue to use the courts to advance his political agenda.”

Trump Suggests Breaking Up the 9th Circuit

President Trump told the Washington Examiner that he has “absolutely” considered proposals that would split up the 9th Circuit, where judges have blocked two of his executive actions.

Said Trump: “There are many people that want to break up the 9th Circuit. It’s outrageous.”

He added: “Everybody immediately runs to the 9th Circuit. And we have a big country. We have lots of other locations. But they immediately run to the 9th Circuit. Because they know that’s like, semi-automatic.”

Quote of the Day

“I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the President of the United States from what appears to be clearly his statutory and Constitutional power.”

— Attorney General Jeff Sessions, quoted by CNN, criticizing a federal judge in Hawaii that has blocked President Trump’s travel ban.

Why Gorsuch May Quickly Adapt to the Supreme Court

New York Times: “Justices interrupt one another all the time, and it may not be easy for the new justice to find his place and to raise his voice this week, when he hears his first arguments. But a new study suggests that Justice Gorsuch has two things going for him: He is conservative, and he is male.”

From the study: “Conservatives interrupt liberals at significantly higher rates than liberals interrupt conservatives.”

“And male justices, perhaps not surprisingly, interrupt female justices far more often than the other way around.”

Roberts Could Soon be the Supreme Court Swing Vote

Rick Hasen: “Even before the Senate confirmed Neil Gorsuch as a justice of the Supreme Court, and before it “nuked” the filibuster for nominees, the Trump administration and conservatives were already plotting to fill the next vacancy. Indeed, they have made overtures to swing Justice Anthony M. Kennedy to get him to feel comfortable with retirement.”

“If Kennedy goes, or if a liberal justice gets sick or dies, Democrats have few levers to stop Republicans from confirming a nominee even more conservative than Gorsuch. The future, then, holds a Supreme Court where Chief Justice John G. Roberts Jr. is the swing vote — a scary eventuality for progressives.”

Democrats Have No Regrets Over Nuclear Option

“Democrats heard the argument throughout the Senate’s bitter debate over Neil Gorsuch: Don’t filibuster this Supreme Court nominee — save your leverage for President Trump’s next pick, the one who could change the court’s balance of power for a generation. But most Democrats decided that holding their fire this time would make no difference in the end,” Politico reports.

“Trump would choose the judges he wants, without regard to how Democrats might react, they concluded. And Majority Leader Mitch McConnell was intent on blowing up the filibuster for high court nominees, if not now, then next time in order to maintain the GOP’s grip on the court. His unprecedented blockade of Merrick Garland, Barack Obama’s Supreme Court nominee, made that clear, they believed.”

“So if Democrats were going to lose the filibuster regardless, best to go down swinging now on a nominee many found far too conservative — a move that would also please a liberal base still spoiling for a fight against Trump.”

Gorsuch Could Have an Immediate Impact

Washington Post: “Newly confirmed Neil M. Gorsuch is likely to have an immediate impact at the Supreme Court, weighing in as early as next week on whether to consider expanding the breadth of the Second Amendment. He could play a decisive role this spring in determining how voting rights should be protected and in a major case on the separation of church and state.”

A Partisan Supreme Court

Rick Hasen: “I’ve noted before that these days all the liberals on the Court have been appointed by Democratic presidents and all the conservatives on the Court by Republican presidents. This wasn’t true until Justice Stevens retired.”

“With today’s confirmation of Neil Gorsuch to the Supreme Court, not only does the trend continue but it is likely to accelerate thanks to the use of the nuclear option.”

“We can expect Republicans to pick reliably very conservative nominees when there is a Republican president and Senate, and Democrats to pick reliably liberal nominees when there is a Democratic president and Senate. (We well may have stalemate, as we had with Merrick Garland, when government is divided.)  There will be less need to pick someone who can satisfy a handful of the other side given the loss of the filibuster.”