Will Supreme Court rescue Trump's immigration travel ban?

WASHINGTON — As President Trump's effort to ban some travelers from six predominantly Muslim countries heads to yet another federal appeals court next week, the federal government's lawyers can't be blamed for looking further ahead — to the Supreme Court.

Nearly all the judges who have heard the administration claim the right to restrict immigration from countries it deems as security risks have said the travel ban discriminates against immigrants based on their religion. As proof, they have cited statements Trump made during the election campaign.

The 4th Circuit and 9th Circuit appeals courts now considering the case are likely to agree, based on their makeup — both have a majority of judges nominated by Democratic presidents. But the Supreme Court may be another story.

Chief Justice John Roberts is a strong proponent of executive authority, particularly in foreign affairs. Justice Samuel Alito has spent his entire career working for the government. Justice Anthony Kennedy wrote in a 2015 immigration case that a "legitimate and bona fide" reason for denying entry to the United States is sufficient. Justice Neil Gorsuch is a stickler for the written text of statutes — and banning Muslims isn't mentioned in Trump's executive order.

"The court is also generally reluctant, and the conservatives more so, to invalidate a facially valid act because it was done for a bad motive," says Douglas Laycock, an expert on religious liberty at the University of Virginia Law School. "I would expect them to be especially reluctant to question a president’s motives on the basis of his campaign statements and the statements of unpaid advisers."

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Trump's chances of winning in court have been improved following an overall rewrite of his first executive order. Now it exempts thousands of foreign nationals who hold valid visas or green cards. It eliminates Iraq from the original list of affected countries, leaving Iran, Libya, Somalia, Sudan, Syria and Yemen. It lasts for 90 days, not indefinitely, as had been the case for Syria. It contains no preference for religious minorities, while the original had favored Christians. And it includes a waiver process for those claiming undue hardship.

Still, last Monday's two-hour hearing before 13 judges of the U.S. Court of Appeals for the 4th Circuit sounded grim for the administration. And next Monday's oral argument before a three-judge 9th Circuit panel may not go much better. That makes it likely the government will appeal to the Supreme Court.

It's not clear when, or even if, the court would hear the case. If the appeals courts are in agreement, the high court could stay out of it. If four justices vote to hear it — the required number — it likely would await an early fall oral argument. And the longer it takes, the harder it may be for the government to claim any irreparable harm, which hurts its argument that a 90-day hiatus would help.

“The odds for the government are much better before the Supreme Court," says Stephen Vladeck, a University of Texas School of Law professor with expertise in national security. But he says, "I don't think it's obvious at all that he wins 5-4."

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Vladeck says Justice Clarence Thomas could be a sticking point, though he generally is the most conservative member of the court. He has written in the past that the First Amendment's prohibition on government-established religion is not so much an individual right as it is a constraint on the federal government. If so, he could rule the ban unconstitutional even though it mostly affects foreigners without constitutional rights.

And Kennedy's vote is by no means assured. His 2015 opinion leaves him room to decide that the travel ban's stated aim — protecting against potential terrorism — isn't a "bona fide" reason because of Trump's previously stated intention to ban Muslims.

But if the bona fide standard is met, he wrote, "courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the constitutional interests of citizens." He added, "this reasoning has particular force in the area of national security."

Then there's the matter of Kennedy's potential retirement. Many of his former clerks say he is considering whether to leave the court this year, at age 80, or stay on at least one more year. Most of the judges on Trump's list of potential replacements likely would support the ban, just as many analysts expect Gorsuch to do.

“He is the last jurist that I would expect to even entertain the notion that this is a Muslim ban," says Jonathan Turley, a constitutional scholar at George Washington University Law School. "If the order is not expressly a ban on Muslims, he’s unlikely to treat it that way.”

In the end, Laycock says, "the ultimate question in this case — which no judge will mention but every judge is thinking about — is whether this president gets the same deference as all other presidents."

That will depend on how the courts balance Trump's words against his actions. Says Turley: “Few justices relish the idea of venturing into the mind of Donald Trump.”