Leah's analysis is important, as well as her conclusion. Court may NEVER rule on travel ban. What explains partial stay? /1https://twitter.com/LeahLitman/status/879367799021355009 …
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It splits the difference--let's each side declare victory, as is clear from early reactions--and says little on the merits. /4
And, as @LeahLitman says, there's a good chance the Court never needs to reach the merits. So the partial stay avoids hardships but /5
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lets the government credibly claim it can keep out those most likely to do U.S. harm and preserves President's general prerogatives /6
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It might be administratively messy (as Leah suggests) and perhaps incoherent as law, but centrist political compromise /7
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More broadly it lets us divide
#SCOTUS into three camps in these kinds of cases centrist block, hard right, and hard left /8 -
centrists-Breyer, Kagan, Kennedy, Roberts hard right--Alito, Gorsuch, Thomas hard left--Ginsburg, Sotomayor
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If this is right, then when Kennedy leaves and Roberts is the swing Justice, he's likely to be more institutionalist than hard right /11
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What I mean by that is Roberts is more likely to vote in the center for pragmatic reasons even if his ideology lines up w/hard right /12
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Best institutionalist option in
#travelban is this partial compromise stay, followed by a decision NEVER reaching merits /13 -
and today's order seems to tee up that possibility nicely (if so, expect strong dissent from Gorsuch, Alito, Thomas) 14/14
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