Understanding Today’s Travel Ban Partial Stay as Sound Politics

Today’s partial stay in the travel ban case is a bit puzzling as law but may make more sense as politics. Following up on my colleague Leah Litman’s excellent post suggesting Court may never reach the merits, here are some thoughts.

I see the partial stay (which allows people with connections to U.S. family, business or university) as a political compromise. It has fingerprints of Breyer (especially the writing style) all over it. Likely with support from CJ Roberts, Kagan, Kennedy. It splits the difference–let’s each side declare victory, as is clear from early reactions–and says little on the merits.

And, as says, there’s a good chance the Court never needs to reach the merits. So the partial stay avoids hardships but lets the government credibly claim it can keep out those most likely to do U.S. harm and preserves President’s general prerogatives. It might be administratively messy (as Leah suggests) and perhaps incoherent as law, but makes sense as centrist political compromise.

More broadly it lets us divide into three camps in these kinds of cases centrist block, hard right, and hard left:

centrists-Breyer, Kagan, Kennedy, Roberts

hard right–Alito, Gorsuch, Thomas

hard left–Ginsburg, Sotomayor

If this is right, then when Kennedy leaves and Roberts is the swing Justice, he’s likely to be more institutionalist than hard right.What I mean by that is Roberts is more likely to vote in the center for pragmatic reasons even if his ideology lines up with hard right.Best institutionalist option in is this partial compromise stay, followed by a decision NEVER reaching merits. and today’s order seems to tee up that possibility nicely (if so, expect strong dissent from Gorsuch, Alito, Thomas).

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