SCOTUSblog by Steve Vladeck 7/12/2017
Steve Vladeck is a professor of law at the University of Texas School of Law.
In her contribution to this symposium, Leah Litman writes that “it’s likely we’ve already heard the court’s last and only words (which were no words at all) on the merits [of the travel ban] . . . because the case will likely be moot by the time the court hears argument in the fall, or reaches a decision.” Whoever else claims victory in that scenario (hint: everyone), it seems to me that the real winner will be Acting Solicitor General Jeffrey Wall — who, in retrospect, may have understood how to maximize the government’s chances before the Supreme Court better than anyone else (including, perhaps, the justices themselves).I
I’ve written (well, tweeted) before about some of the procedural quirks in exactly how the government brought the travel-ban litigation to the Supreme Court. Three, in particular, stand out:
First, although the U.S. Court of Appeals for the 4th Circuit issued its 10-3 en banc decision affirming a nationwide injunction of the key provision of the travel ban on Thursday, May 25, the government waited a full week before applying to Chief Justice John Roberts for a stay of that decision (pending the Supreme Court’s disposition of the government’s contemporaneous cert petition). That may not sound like a lot, especially since half of that week was Memorial Day weekend, but both legally and optically, any delay could have been seen as undermining the argument for such emergency relief — which was itself predicated on the claim that the Maryland and Hawaii injunctions were causing irreparable harm to the government every moment that they remained in force. Indeed, let’s not forget that the government could have asked the Supreme Court to step in two months earlier, had it sought certiorari before judgment in the 4th Circuit.
Second, and far more significantly, once the government finally did file its stay applications and cert petition, it requested expedited briefing but not expedited argument. In other words, the government asked the Supreme Court to decide whether it would take up an appeal from the 4th and, later, 9th Circuit’s decisions by the end of June, but didn’t want the justices actually to hear such an appeal until October. As with the delay in the filing itself, not asking for expedited argument seemed a risky gambit, because it put that much more pressure on the stay applications — asking the court, in effect, to reinstate the entire executive order for at least four months.
More:
http://www.scotusblog.com/2017/07/symposium-acting-solicitor-general-sort-saved-travel-ban/#more-258520
