I Stand By My Prediction: The Court Will Reargue the Case On The Merits And Duck The Procedural Issues

There are eight, and possibly nine votes against Trump on the merits. But the Court is far too fragmented on the injunction issue.

There is much to say about the oral argument yesterday in Trump v. CASA. For now, I stand by my prediction from Tuesday:

A few colleagues said I was wrong, and that the merits issue was not adequately briefed. I'm not so concerned. The Court can always restore the case to the docket for the fall and order supplemental briefing. Injunctions are in place now, so time is not of the essence.

Justice Gorsuch asked General Sauer, point blank, "How do you suggest we reach this case on the merits expeditiously?" Gorsuch asked NJ Solicitor General Feigenbaum , "how would you get the merits of this case to us promptly." Gorsuch asked again, "I appreciate that. How do we get to the merits fast?"

I expect this case to be restored to the docket with argument in the fall. The Court could follow the timeline from Citizens United v. FEC. Recall that case was initially argued in March 2009. Malcolm Stewart (infamously) said that the government could ban books. That argument did not go over so well. The majority apparently was prepared to declare unconstitutional the campaign finance regulation. According to Jeffrey Toobin, Justice Souter and other prevailed on the Chief Justice to re-argue the case to ensure the issue was clearly presented. Roberts went along with this strategem. On the very last day of the October 2008 Term, the Court restored the case to the docket for reargument during a special September sitting:

This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. 441b? The briefs, not to exceed 6,000 words, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, July 24, 2009. Amicus briefs, not to exceed 4,500 words, may be filed with the Clerk and served upon counsel to the parties by 2 p.m., Friday, July 31, 2009. Reply briefs, not to exceed 3,000 words, may be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Wednesday, August 19, 2009. The case is set for oral argument at 10 a.m., Wednesday, September 9, 2009.

September 9 was Justice Sotomayor's first day on the Supreme Court, and Elena Kagan's first oral argument, ever.  Justice Kagan said the government could not ban books, but her explanation why did not make any sense. The case was decided on January 21, 2010, shortly before the State of the Union. And the rest is history.

I think the Court will follow a similar trajectory.