It was a "hot bench," as they say, on Wednesday when government lawyers defended Donald Trump's authority to issue a ban on travelers from five predominately Muslim countries in Trump v. Hawaii. But most court observers walked away with the sense that a majority of the justices will side with the government.
Though lower courts have struck down several iterations of Trump's Muslim ban, "by the end of the argument," wrote the New York Times, "it was hard to identify five justices ready to vote to strike down the ban."
In its current form, Trump's Muslim ban 3.0 bars the entry of travelers from Syria, Libya, Iran, Yemen, Somalia, North Korea, and Venezuela, but the lawsuit excluded the last two countries.
While challengers of the ban sought to convince Chief Justice John Roberts and Justice Anthony Kennedy that Trump's ban was driven by unconstitutional animus and exceeded his executive mandate, they both appeared skeptical of that position. The Washington Post writes:
Chief Justice John G. Roberts Jr. was most active in advancing the notion that the president is privy to national security information that courts are ill-prepared to second-guess.
Roberts posited a hypothetical: If the intelligence agencies told the president that 20 Syrian nationals planned to enter the U.S. with biological weapons, could the president ban the entry of Syrians to stop them? [Hawaii's counsel Neal] Katyal conceded that he could, because in that instance — unlike this one — there was a true emergency.
“We’re so far from the hypothetical that we’ll concede the hypothetical,” Katyal said.
And Kennedy, some said, asked questions that appeared supportive of Trump's executive authority to issue such a ban.
But Buzzfeed's Chris Geidner offered a more contrarian take, tweeting, "I'm seeing a lot of my colleagues here at the court tweeting that they predict a victory for the government out of the arguments [...] I don't think it was clear at all."
The court was reviewing two separate rulings striking down the ban from the 9th and 4th circuits—the first concluding Trump had exceeded his authority and the second finding the ban was "unconstitutionally tainted with animus toward Islam."
Justice Elena Kagan similarly asked [Solicitor General Noel] Francisco about a hypothetical anti-Semitic candidate for president who once elected put in place a proclamation blocking entry for citizens of Israel. Could the courts intervene in such a situation, she asked.
“This is an out-of-the-box kind of president in my hypothetical,” Kagan added, prompting laughter from the courtroom.
Francisco called it a “tough hypothetical,” but said such a president could impose the measure if it came at the recommendation of staff who had identified a genuine national security problem. In contrast, Francisco said Trump’s travel ban is an “easy case” because it came after multiagency review and on the advice of Cabinet officials.
The government's arguments leaned heavily on what Francisco called the "worldwide multiagency review" that he argued informed Trump's third Muslim ban, presumably setting it apart from the slap-dash rush job preceding the first two iterations of the ban.
But Francisco ended his defense of the ban on a disturbingly low note. Speaking of Trump, he said:
"He has made crystal clear that Muslims in this country are great Americans and there are many, many Muslim countries who love this country," Francisco said. "And he has praised Islam as one of the great countries of the world."
Yep, that's the guy who, serving as U.S. Solicitor General, argued the government's case at the highest court in the land. Stunning.
If you’re interested, audio of the arguments is already posted online.