Wednesday, June 7, 2017

Justices Clear "Travel Ban" for Possible Early Arrival at Supreme Court

Court Could Quickly Decide to Hear Case on the Merits

Great Hall Leading to the Courtroom
The next few weeks may lead to a dramatic ending to what has so far been a fairly mundane Supreme Court term. Last Friday, the Court responded in rare fashion to the Administration’s request late Thursday night that it review the May 25th decision of the Fourth Circuit Court of Appeals upholding a nationwide injunction against President Trump’s revised “Travel Ban," formally known as Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (EO 13780). 

Rather than follow its normal process, the Court ordered that a response to the petition for certiorari (the formal name for seeking review) be filed on or before June 12th, which is quite an accelerated schedule and departure from practice; indeed, a response to a petition is only required in cases involving death sentences unless, as here, one is ordered by the Court. In addition, the Court ordered that respondents file that same day a response to the Administration's request for a stay of the Fourth Circuit’s decision pending the disposition of the certiorari petition. 

The normal process for deciding whether to review cases under certiorari jurisdiction is much longer, especially for cases seeking review late in the Court's term. The expectation was that the Court – which has broad discretion over which cases to accept for review – would not decide until its next term starting in October whether to accept the case; if it did, then the case would be briefed, argued, and decided by June 2018. It is also interesting to note that this case is at the preliminary injunction stage, which is atypical for Supreme Court review.