Not Quite #WhatTheyVotedFor

#Justice | #WhatTheyVotedFor


Let us start with Maura Dolan of the Los Angeles Times:

A three-judge panel of the U.S. 9th Circuit Court of Appeals declined early Sunday to immediately block an order from a federal judge in Washington that halted the travel ban.

Instead, the panel established a rapid schedule for written arguments.

A brief from the two states that challenged the ban was filed early Monday. The administration’s response was due at 3 p.m. Pacific time. A panel ruling could come anytime after that―most likely within a week, experts said.

The three judges who happen to be sitting on the 9th Circuit’s motions panel this month and who will rule on the case are William Canby Jr., a President Carter appointee; Richard Clifton, appointed by President George W. Bush; and Michelle T. Friedland, appointed by President Obama.

Clifton is considered moderately conservative and the two Democrats are viewed as moderately liberal. The 9th Circuit is broadly viewed as the most liberal federal appeals court.

If Trump loses, he could immediately go to the U.S. Supreme Court. Justice Anthony M. Kennedy, who handles matters from the 9th Circuit, would probably ask the other justices to weigh in.

Erwin Chemerinsky, dean of the UC Irvine School of Law, suggested Sunday that the 9th Circuit was likely to rule against the Trump administration.

“Virtually every judge to consider the executive order has said that there is a substantial likelihood that it is unconstitutional,” Chemerinsky said in an email. “Both Republican and Democratic appointees have come to this conclusion. Having read some of the briefs in these cases, I think any court is likely to come to this conclusion.”

And, having the general update, let us then hop on over to the Ninth Circuit Court of Appeals, where we might keep up with the latest developments in Washington & Minnesota v. Trump (#17-35105). What seems most interesting is that we see how this will go, yet to what degree is the question of the Supreme Court supposed to be itself a question mark? Mr. Chemerinsky of UC Irvine included in his discussion with the Times his “instinct that they are unlikely to get involved at this early stage, especially with virtually all the lower courts coming out the same way. To the one, it is true that the legacy of Merrick Garland’s nomination to the nation’s highest court will loom large in legend over the coming years, but we should also remember of the nominee Judge Gorsuch that Justice Kennedy and the retired Justice Souter were Republican appointments, and conservatives have expressed their disappointment with both. Gorsuch will hardly thrill liberals, but it is uncertain whether his confirmation or otherwise would have any effect on how the Supreme Court responds to the states’ complaint against the Trump executive order. This is either clear or it’s not, and it really does seem up to the Supreme Court to decide to make it complicated or not.


Dolan, Maura. “U.S. 9th Circuit Court of Appeals is expected to decide quickly on Trump’s travel ban”. Los Angeles Times. 5 February 2017.

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