Will Scotus trump Trump?

To fulfill his election promise to secure US borders, US President Donald Trump issued an executive order banning the entry into America of the citizens of seven Muslim-majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

Legal setback. However, US District Judge James Robart, sitting in Seattle, rebuffed him with a temporary restraining order. The 9th US Circuit Court of Appeals (USCA) stationed in San Francisco, California, unanimously affirmed the order.

Embarrassed, Trump angrily tweeted, “See you in Court,” meaning he would appeal to the Supreme Court of the United States (called “Scotus” by the US legal community).

(Unlike our Supreme Court, the Scotus strictly observes the hierarchy of courts and hears only appealed cases, not those directly filed with it.)

Problematic appeal. In my humble view, an appeal to the Scotus will be problematic because:

First, Trump’s absolute ban, though for only 90 days, is directed at a group of nationals on the basis of their Muslim religion, which violates the US (and Philippine) Bill of Rights prohibiting discrimination on the sole basis of religious belief.

Second, as held by the USCA, the US government admitted it had no evidence that nationals of the countries involved had threatened the national security of America. The executive order was issued on mere speculation, not on hard facts, that Muslims constitute a threat to national security.

Third, the Scotus normally reviews only final judgments, not interlocutory orders like the one issued by the Seattle Court and affirmed by the USCA.

Fourth, assuming that the matter is “political,” as loudly asserted by Trump, then the Scotus—voting according to political alignment, or, more accurately, according to philosophical orientation (Democrats are said to be “liberals” in their judicial philosophy while Republicans are “conservatives”)—would dismiss the appeal, given that four of the current eight justices were appointed by Democratic presidents and the other four by Republican presidents. A tie vote would result in the defeat of an appeal.

True, the probable ninth member, nominated by Trump, Judge Neil Gorsuch of the USCA, is awaiting confirmation by the US Senate. (Members of the Scotus are called “justices” while those of the lower courts, including the USCA, are called “judges.”)

Even assuming that his nominee would be confirmed in time to enable him to vote on the appeal, still there is no assurance that the Scotus would not trump Trump. Note that one of the three CA judges and the Seattle judge who ruled on the case below were named by a Republican president, yet they all rebuffed Trump.

It is not uncommon for justices to cross the philosophical divide when constitutional rights are at stake. Two of them—the late Chief Justice Earl Warren and Justice William Brennan, both appointed by

Republican Dwight Eisenhower—led the liberals in reinterpreting the US Bill of Rights, to Eisenhower’s televised chagrin. Current Chief Justice John Roberts, named by Republican George Bush, headed the four liberals in upholding Obamacare.

Best strategy. I believe the best strategy is for Trump to go ahead with his announced alternative plan to withdraw, replace, or revise his executive order and rid it of religious discrimination. In this way, he would avoid a looming legal defeat.

A similar strategy of not defending the indefensible was used here in the petition filed by the impoverished survivor and families of the slain drug suspects in a “Tokhang” operation in Payatas, Quezon City.

After swiftly issuing a temporary protection order prohibiting the respondent policemen from entering a one-kilometer radius from the petitioners’ residences and places of work, our Supreme Court referred the case to the Court of Appeals (CA). Wisely, President Duterte’s administration—through the Office of the Solicitor General (via Assistant SolGen Herman Cimafranca)—sided with the petition.

Consequently, the CA decided the case immediately and made the temporary order permanent, a win-win for both the Center for International Law led by Joel Ruiz Butuyan, the petitioners’ courageous counsel, and the government lawyers.

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