Media Hits and Commentary (6/26/17 – 6/30/17)

July 1st, 2017

The final day of the Supreme Court’s term–June 26, 2017–unleashed a flurry of media interviews concerning the travel ban case, as well as the decision in Trinity Lutheran v. Comer. On Monday alone, I appeared on NPR’s All Things Considered, the BBC World Service, the Canadian Broadcasting Corporation, Bloomberg Law Radio, and many others. Following the Court’s decision in IRAP v. Trump, the press shifted to how the travel ban would be implemented.




The justices, though, said the president deserves deference when acting on national security concerns in immigration matters, where Congress has given the executive branch significant leeway.

“The Supreme Court did what the lower court judges would not: treat President Trump like any other president with the ‘presumption of regularity,’” Josh Blackman, associate professor at South Texas College of Law in Houston, wrote on his blog. “The justices did not delve into the president’s Twitter account, nor did they parse his campaign statements.”

The case had been on the Supreme Court’s list for potential cases since September, and the delay had prompted speculation about what was going on behind the scenes.

Josh Blackman, a law professor at South Texas College of Law, said he was surprised that the court decided to take up the case and predicted a huge impact next year.

“Something must have shifted. Maybe there are now votes to reverse,” he said.

“This is a significant decision that I didn’t expect and most people didn’t expect,” said Josh Blackman, a constitutional law professor at South Texas College of Law-Houston. “This is a pretty big victory for the Trump Administration.”

Blackman, speaking on a conference call hosted by the conservative Federalist Society, added that he was surprised there were no dissents from Democratic appointees. He noted that, unlike the lower courts and appeals courts, the Supreme Court justices did not weigh Trump’s campaign rhetoric, Twitter posts and public interviews that lower-court judges said revealed a biased motive.

Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston and member of the conservative Federalist Society, said he’s comfortable calling the court’s decision a unanimous win for Trump.

“There’s no recorded dissent,” he said. “Justice [Sonia] Sotomayor is not afraid to dissent when she wants to. … If there were to be a dissent, there would be a dissent.”

Because the 90-day travel ban will expire before the court’s next term begins, Blackman said the court might ultimately decide to dismiss the case as moot and never hear Trump’s appeal.

In doing so, analysts said, he planted himself to the ideological right of Chief Justice John G. Roberts Jr. and seemed to align himself most frequently with Justice Thomas, the court’s most libertarian-leaning member.
“The guy’s not afraid to write,” said Josh Blackman, an associate professor at South Texas College of Law. “He’s not afraid to assert himself.” . . .

Mr. Blackman said that did a disservice to the justices, who bring their own developed judicial philosophies to the court.

Justice Gorsuch filled the seat of Justice Antonin Scalia, who passed away in February 2016. Some conservatives had hoped the new justice would also live up to the legacy of Scalia.

Mr. Blackman said it’s too early to say whether that would happen because Scalia had “such a gravity” on the court.

“We’re talking one of the top justices of all time,” he said.

South Texas College of Law Professor Josh Blackman took a different view. During a conference call organized by the Federalist Society, Blackman argued that, as a practical matter of policy, the ruling was a victory for the administration, regardless of the Court’s intentions . . . .

“At issue with the ban were specifically people who had zero connection to the United States,” he said. “Who is now allowed to be banned? People with zero connection to the United States. So what this decision basically does is codify the waiver, at least for this period, and allows the government to reject everyone else.”

“In that sense,” he added “this is a pretty significant victory for the Trump administration.”

Blackman also noted that the decisions of the 4th and 9th U.S. Circuit Courts of Appeals, which upheld injunctions blocking the order, will be vacated if the high court dismisses the case for mootness, a development many anticipate.

In effect, he argues, the Court could afford the president his travel ban, vacate the lower court rulings which stymied the administration, and never reach the merits of the case — on balance, a win for an embattled Trump White House.

  • Guest on News, BBC World Service to discuss the Supreme Court’s term (June 26, 2017) (Audio).

  • Guest on the Michael Berry Show to discuss the travel ban case, KTRH AM 740 Houston (June 26, 2017) (Audio).

  • Guest on the Michael Berry Show to discuss Trinity Lutheran Church v. Comer, KTRH AM 740 Houston (June 26, 2017) (Audio).

  • Guest on The Sam Walker Show, BBC Radio 5 to discuss the Supreme Court’s term (June 26, 2017) (Audio).

  • Guest on WWL First News with Tommy Tucker to discuss the Supreme Court’s term (June 27, 2017) (Audio).

  • Guest on WBAL News Now with Bryan Nehman to discuss the Supreme Court’s term (June 27, 2017) (Audio).

All sides recognized Monday’s ruling – and its lack of comment on the lower courts’ findings of religious bias – as “a pretty big victory for the Trump administration”, said Josh Blackman, a constitutional law professor at South Texas College of Law-Houston.

“They dialed down the temperature a few notches,” says Josh Blackman, an associate professor at the South Texas College of Law who specializes in constitutional jurisprudence.

To some extent, these judges responded in kind. In May, the US Court of Appeals for the Fourth Circuit had harsh words for the president, saying his then-newly revised order “drips with religious intolerance, animus and discrimination.”

That statement is “a bit over the top,” says Professor Blackman.

Campaign statements are of necessity an exaggerated form of speech, and they haven’t before entered into a court’s consideration of presidential intentions, Blackman says. The Supreme Court recognizes this, and nowhere cited Trump’s tweets or irregular speech. They returned to what Blackman calls a “presumption of regularity”: this president is like any other. He won’t be treated as a unique danger who demands a unique approach to the law.

One former clerk who could play a large role in Kennedy’s calculus regarding whether to retire is new Justice Neil Gorsuch.

Josh Blackman, a South Texas College of Law professor, said the jury is still out about how Gorsuch’s presence could affect Kennedy’s thinking about leaving.

“On the one hand, President Trump’s nomination of a former Kennedy clerk should assuage concerns that Justice Kennedy may have about who will replace him,” Blackman said. “On the other hand, Justice Gorsuch’s conservative approach to date — perhaps more conservative than Justice Scalia’s — could give Justice Kennedy pause about letting a Republican nominate his successor.”