"This thing" is going to the Supreme Court again. Precisely because what the Justices did in today's order was to agree to schedule the government's appeal for a hearing when the Supreme Court begins its new term in October. In doing so, they slightly modified the lower court delay in carrying out Trump's executive order, which otherwise remains in effect while the issues are litigated. That is all they did. There has been no decision on the merits and in my experience* it's almost impossible to infer how the Court will finally rule in a particular case by its decision to grant certiorari.
When the Justices do consider the issues, there are a number of ways they could rule. I think there are four likely alternatives. They could (1) decide that the claims made by the plaintiffs, even when interpreted in a manner most favorable to the plaintiffs, could not as a matter of law constitute a valid challenge to the Trump executive order, and simply dismiss the lawsuits (i.e., no further evaluation of the facts by a trial court would be necessary); (2) provide guidance on the legal parameters that should govern future litigation on the issues, and let the lawsuits proceed in the lower courts; (3) declare the current case before the Supreme Court to be moot (not justiciable because of things that have happened between now and then—e.g., if the government has concluded its review of the entry procedures for the countries in question); (4) avoid these issues altogether and just rule on the validity of the part of the injunction they let stand today, which would be tantamount to proceeding per option 2 but without further legal guidance.
___
*I'm a lawyer and I covered the Supreme Court as a reporter for six years.
Chris: At first I though that 3 would happen since the 90 days will be over and the Administration would have completed it's new vetting process and the travel ban would end. There would be no case to review. Unfortunately, I'm thinking logically based on what most people would do.
But now, I'm thinking that will not happen. Knowing Trump, the disruptor, he might want the fight to continue the case to prove he was right about all or most of the issues. SCOTUS has already ruled 9-0 that the president has the right to exclude aliens. So he can't lose on that. SCOTUS is not going to reverse themselves. It's possible that he could win on the other part where they agreed 6-3 that aliens with close relations with America or Americans cannot be banned. But they could reverse even that and make him a 100% winner. So he has little to lose by keeping it going and a lot to win politically. Even if SCOTUS doesn't help with the other part, the issue would stay in the news and remind everyone he won.
So what he's going to do is to issue new vetting after the 90 days that would eliminate practically all entry of aliens for one year, or maybe even permanently until the war with ISIS is completed and we are safe again. That will drive the Democrats nuts. The liberal media will go crazy. And his supporters will scream their approval at his determination to protect the country. The lower court will say the ban is unconstitutional. SCOTUS will overrule them and allow the ban against aliens with no relationship with America.
This is the part of the decision that will make Trump feel he'll have the support of SCOTUS:
From SCOTUS Decision page 11:
...But the injunctions reach much further than that: They also bar enforcement of §2(c) against foreign nationals abroad who have no connection to the United States at all. The equities relied on by the lower courts do not balance the same way in that context. Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national. And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself. See id., at 762 (“[A]n unadmitted and nonresident alien . . . has no constitutional right of entry to this country”). So whatever burdens may result from enforcement of §2(c) against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below. At the same time, the Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States. Indeed, EO–2 itself distinguishes between foreign nationals who have some connection to this country, and foreign nationals who do not, by establishing a case-by-case waiver system primarily for the benefit of individuals in the former cate- gory. See, e.g., §§3(c)(i)–(vi). The interest in preserving national security is “an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010). To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else...
