We now have, as of Friday night, several trial level federal court opinions that are in direct conflict with one another. Earlier last month in Boston, and now, tonight in Alexandria, Virginia (as a 32 page PDF file), there are two opinions finding a TRO or preliminary injunction is not warranted, or appropriate, on this second executive order.
On the other hand (as we’ve amply reported here), in Seattle alone, there are two — a trial level, and an appellate level opinion, coming out the other way. Moreover, in Brooklyn, Baltimore and Honolulu — there are three more rulings in favor of TROs. [I believe there is at least one each in Central, and Northern California, and one Wisconsin — all against the ban, as well.]
I tally it as at least 7-2, in favor of striking the Muslim Ban. But there is plainly a yawning chasm/split of authority, among the federal District Courts, here.
That fact alone may allow that the Supremes will take it up directly (without intervening appeals), should either side make such a motion. When we overlay this clear split, onto the notion that this is an extremely important and ground-breaking question — one with profound implications for Constitutional separation of powers, and executive branch authority — I will bet that within a month, or two at the outside, some form of one of these Muslim Ban 2.0 TROs will be placed on the Supremes’ docket.
Until then, we will have to wait. As of tonight, Friday, March 24, 2017 — Mr. Trump has filed no definitive, substantive appeal — on any of the TROs, nationwide. Perhaps he is in no hurry, thinking his SCOTUS nominee will be seated by the time it reaches briefing.
[Personally, I already see five solid SCOTUS votes — to strike Muslim Ban 2.0, with or without 45’s nominee. And I think 45’s people well know it. That’s why he is doing a slow cha cha here.
I predict, more specifically — that Justice Kennedy will join the expected four (Justices Ginsburg, Kagan, Breyer and Sotomayor), and strike his ban. If that is so — Gorsuch will not matter, at all (and it is not beyond belief that Chief Roberts and Newbie Gorsuch might join the other five). Not probable; but possible. We shall see. Goodnight, to all of good will. Today was a great day — for people with a modicum of compassion, in their hearts.]