President Trump is expected to pay his first visit to the Supreme Court on Thursday. His words and actions precede him.
Trump’s planned drop-by for the official investiture of Justice Neil M. Gorsuch comes as the president’s lawyers make almost daily filings with the justices in an attempt to revive his ban on refugees and travelers from six mostly Muslim countries.
The court could decide by next week whether to allow Trump’s executive order to go into effect or follow the lead of lower courts that have stopped the order because they say it exceeds the president’s authority and discriminates unconstitutionally.
It’s unlikely the high-stakes legal maneuvering will be mentioned Thursday, nor Trump’s blasts at the federal judiciary in general and some of the justices specifically.
Trump has called Chief Justice John G. Roberts Jr. “an absolute disaster” for conservatives. After Justice Ruth Bader Ginsburg in interviews last summer called Trump a “faker” and said she feared for the country if he were elected, Trump responded by saying that “her mind is shot” and that she should retire.
Since then, Roberts administered the oath of office to Trump on Inauguration Day, and all of the justices attended a Rose Garden ceremony after the Senate confirmed Gorsuch’s nomination.
Differences traditionally are put aside for a new justice’s investiture, a short but formal and history-laden event that culminates in iconic photos of the chief justice and the new justice descending the Supreme Court’s famous marble steps. Gorsuch actually joined the court April 10 and earlier this week delivered his first opinion.
At the last investiture ceremony in 2010, for his nominee Elena Kagan, President Barack Obama mingled beforehand with the justices he had criticized in his previous State of the Union address for their decision in Citizens United v. Federal Election Commission.
“You’re always welcome here,” the chief justice told the president during the ceremony.
But it is rare for the court and the president to get together when such an important executive branch priority is pending.
Trump signed his first executive order imposing a travel ban just after he was inaugurated in January. It was struck down by a judge in Washington state, and that decision was affirmed by the U.S. Court of Appeals for the 9th Circuit.
Even though Trump vowed to take his initial ban to the Supreme Court then, his administration instead issued in March what Trump later tweeted was a “watered-down” version.
The revised ban suspends travel from six predominantly Muslim countries for 90 days to give the administration time to conduct a review of whether proper vetting procedures are in place to ensure travelers are not a threat to national security.
The order also suspends the nation’s refugee program for 120 days and imposes a new limit on the number of refugees accepted.
A three-judge panel of the 9th Circuit just this week upheld the decision of a federal judge in Hawaii to keep that executive order from going into effect. The judges said that Congress had given the president great power in immigration decisions but that Trump had not shown national security warranted the actions he had taken.
The U.S. Court of Appeals for the 4th Circuit, meanwhile, said banning travelers from the six countries was really just a way for Trump to make good on his campaign promise of a ban on Muslims. That was an unconstitutional form of discrimination, the court said in a 10-to-3 ruling.
The Supreme Court is now being asked to lift the stays and accept the case for oral argument. The court granted the administration’s request that briefing on the issue be extended to June 21.
But the court is scheduled to end its term June 26, so that would seem to mean even if the court accepted the case, it would not be scheduled for argument until the fall.
Steve Vladeck, a University of Texas law professor who has closely followed the litigation, said the proposal is “not the kind of move you’d expect from a government in a hurry.”
The pause on immigration was supposed to be only so the administration could ensure proper vetting procedures were in place. The 9th Circuit opinion said the administration was free to undertake that study but without the travel ban.
That lessens the government’s need to lift the stays, Vladeck said, unless the real objective of the executive order is to block travelers, rather than to ensure the proper vetting procedures are in place.
Abby Phillip contributed to this report.