SCOTUS News, 6/28/17: Travel Ban; Summary Judgments

In three different opinions this week, including the travel ban, SCOTUS ruled per curiam with dissents from one or multiple Justices. We’ll look at these today, and examine Monday’s three opinions later in the week.

The Travel Ban

SCOTUS rules to partially uphold the now-infamous Trump travel ban, Trump v. International Refugee Assistance Project. This is in part because the Justices do not want to interfere with the President’s prerogative over national security issues. (Look no further than last week’s Abbasi cases for further instructions.) But SCOTUS does not make short work of the travel ban’s larger issues. They take the case for further review in the term beginning this October.

In the meantime, they partially uphold the injunctions against the travel ban. EO-2 cannot bar foreign nationals from entering the United States if they have substantial relationships here. This includes family members of citizens or lawful residents, and university students, employees, or others in similar situations. However, EO-2 does bar entry to foreign nationals who have no ties to the United States. This distinction holds for any refugee applicants, as well. Applicants with ties to the U.S. are not barred by EO-2. But EO-2 bars refugee status for those without similar ties.

SCOTUS makes clear that they can issue no further guidance yet. Thomas, Alito, and Gorsuch concur in part and dissent in part. They would have liked to see the case decided on the merits before the exceptions laid out above. In any event, SCOTUS will hear proper argument in the case next term. A ruling will come, likely next year.

Other Summary Judgments

Pavan v. Smith, a brief decision, concerns birth certificates of children with same-sex parents. In Arkansas, the male spouse of a woman is added to her child’s birth certificate. Arkansas did not allow this practice for mothers with female spouses. Citing Obergefell v. Hodges, SCOTUS reverses Arkansas’ lack of an extension of that right to same-sex couples. Obergefell provides the “constellation of benefits that the State has linked to marriage.” This includes the right for any spouse to appear on their child’s birth certificate.

In dissent, Gorsuch (with Thomas and Alito) expresses concern over using summary judgment here. The dissent would rather have a complete consideration of the case. They argue that the issue is more complex than summary judgment would make it seem, and that Arkansas adheres to the Constitution in the ways most salient to this case.

– In the third per curiam decision this week, the Court weighs in on Hernandez v. Mesa. The Court of Appeals originally ruled that Mesa had qualified immunity when he shot and killed Hernandez from across the border. SCOTUS is not so sure qualified immunity exists here. Mesa did not, for example, know at the time of the shooting that Hernandez was a Mexican national. This would secure certain rights for Hernandez and his family.

The Justices decline complete review of some aspects of the case. Instead, they instruct the Court of Appeals to re-examine the case for Bivens relief for Hernandez’s family. They also point to the recent Abbasi rulings for further guidance. Hernandez, despite being a non-citizen, may have enjoyed the protection of the Fourth and Fifth Amendments at the time of the shooting. The five-member majority in the unsigned opinion vacates and remands the case.

Thomas dissents, citing concerns about the continued expansion of Bivens recommended by the majority.

Breyer dissents as well, joined by Ginsburg. They write further about situations in which constitutional rights extend to people who ordinarily would not have them. This is one such case. Mesa shot across the border, and could not have known for sure where Hernandez would be when the bullet struck him. Additionally, Hernandez stood in the border culvert when he was shot, and this area has unique international properties.

The Crowd and the Algorithm

Of these three cases, only Hernandez v. Mesa had a complete oral argument phase. Neither the Crowd nor the Algorithm got the individual Justice predictions correct, but both were reasonably certain that the decision would reverse or vacate the Court of Appeals.


Hernandez v. Mesa


No oral argument for the travel ban until next term. Pavan v. Smith was never on our radar for a proper prediction. Both the Crowd and the Algorithm hit reasonably close to Hernandez and its unique majority of Roberts, Kennedy, Alito, Sotomayor, and Kagan.

Crowd: 52/63 cases; Accuracy Rate: 82.53%
{Marshall}+: 37/63 cases; Accuracy Rate: 58.73%

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