The Trump administration will request more time to prepare its arguments for the Supreme Court to consider the president’s travel ban, according to a letter sent to the high court Tuesday.
The Justice Department proposed a change to the expected briefing schedule to allow it to formulate a response to an opinion issued Monday by the 9th Circuit Court of Appeals. DOJ’s maneuver risks delaying Supreme Court consideration of the case until October, inviting administration critics to question whether the sense of urgency that inspired Trump’s travel ban is shared by the lawyers who are defending it.
In a unanimous decision, a three-judge panel for the 9th Circuit chose to leave in place a lower court’s injunction against the policy, which temporarily bans visas for travelers from six majority-Muslim countries and suspends the refugee resettlement program. The 9th Circuit’s move follows a decision in May by the 4th Circuit Court of Appeals, which also let stand an injunction against the travel ban.
In the letter, acting Solicitor General Jeffrey Wall asked the Supreme Court for the chance to supplement the administration’s filings to address the newly issued opinion in the 9th Circuit.
The district court ruling that preceded the appeal cited the Establishment Clause of the Constitution, but the 9th Circuit upheld the injunction on statutory grounds.
Under the proposed schedule change, the Supreme Court would not be fully briefed in the case until June 22, the court’s last conference date for the current term.
Josh Blackman, an associate professor at the South Texas College of Law in Houston, said he didn’t expect the move to alter the likelihood that the high court will take the case. “I still think it is feasible that arguments could be [scheduled] by the end of June or the beginning of July, with a resolution over the summer,” Blackman said in an email. “It doesn’t make much sense to wait till the fall, though the justices do value their summer breaks.”
But it would be unusual for the court to schedule arguments over the summer, and seems likelier it would defer consideration of the case until the fall.
Trump tweeted Tuesday morning about the possibility of the Supreme Court considering the policy. “Well, as predicted, the 9th Circuit did it again,” he wrote. “Ruled against the TRAVEL BAN at such a dangerous time in the history of our country. S.C.”
An attorney for respondents, the state of Hawaii and a local Muslim leader, opposed the requested delay in a reply letter to the court on Tuesday.
The attorney, Neal Kumar Katyal, wrote that “permitting a reply in this case would mean that there would be five total briefs addressing a single stay application."