During intense arguments at the Supreme Court on Wednesday, the justices, by a narrow margin, seemed to be leaning toward upholding the third and current version of the Trump travel ban.
Justice Anthony Kennedy, who is often the deciding vote in closely contested cases, for example, made repeated comments suggesting that the court does not usually second-guess a president's national security decisions — even in the context of an immigration law that bans discrimination based on nationality.
If the court does rule in favor of the government — a decision is expected in June — it would be a big win for one of the pillars of President Trump's politics. It's an issue that animates the bases of both parties, appealing to the grievance politics of Trump's supporters and outraging the moral sensibilities of the left. Between the travel ban and the proposed wall along the U.S.-Mexico border, that idea of exclusion is fueling the resistance to Trump and firing up liberals for this year's midterms.
In court Wednesday, faced with the challengers' assertion that the travel ban is indefinite and perpetual, Kennedy replied caustically, so you want the president to say he is "convinced that in six months, we're going to have a safe world?"
Justice Stephen Breyer challenged Solicitor General Noel Francisco's assertion that the current process still allows significant numbers of people to enter the U.S. from these countries. How many? asked Breyer. Roughly 400, replied Francisco.
"That's 400 out of 150 million," Breyer responded, exasperated.
Later, lawyer Neal Katyal, representing those challenging the ban, pointed out that the current process continues to exclude many who have valid reasons to go to the U.S., like a 10-year-old girl who cannot move and wants to come to the U.S. for medical treatment.
Perhaps the most difficult question the government faced came from Justice Elena Kagan. She presented this hypothetical: Imagine that a "vehement anti-Semite" who says "all kinds of denigrating things about Jews and provokes a lot of resentment and hatred" is elected president.
That president issues an order that "dots the i's and crosses the t's" in terms of process but is a proclamation that says no person may be permitted from Israel.
Francisco replied that if the Cabinet determined there was a national security risk, "the president would be allowed to follow that advice even if in his private heart of hearts, he also harbored animus."
But, he pointed out, that hypothetical isn't the the case here.
Kagan slyly responded: Let's just say this is an "out-of-the-box president."
That prompted outright laughter in the courtroom.
Francisco held firm, saying that if the Cabinet agrees that there is a national security risk, the court would have to uphold the order.
Kagan contended that it's not what is in the president's heart of hearts, but what a reasonable observer would interpret.
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