Supreme Court justices asked tough questions of both sides on Wednesday while weighing President Trump’s authority to impose a travel ban, which restricts entry into the U.S. from several predominantly Muslim nations, after the president promised to impose a “Muslim ban.” By the end of the argument, it was hard to identify five justices ready to vote to strike down the ban, the New York Times reports. Immigrant rights groups hoped that Chief Justice John Roberts or Justice Anthony Kennedy would join the court’s four-member liberal wing to oppose the ban. Their questioning was almost uniformly hostile to the challengers.
Several justices asked Solicitor General Noel Francisco about the national security justifications for the travel ban, and pressed him to explain why the restrictions should not be seen as tainted by religious animus. Justice Elena Kagan offered a hypothetical scenario in which a future president who is a “vehement anti-Semite” and makes denigrating comments about Jews comes into office and bans entry to the United States from Israel. “The question is, what are reasonable observers to think in that context?” she asked. Francisco acknowledged that “it’s a tough hypothetical” but insisted that in the case before the court, the administration’s basis for the travel ban was fully documented as a result of concerns about national security, and not on Trump’s personal beliefs. “No matter what standard you apply, this proclamation is constitutional,” he said. Kennedy pressed Neal Katyal, a lawyer for the challengers, about why courts should second-guess a president’s national security judgments. Roberts posed hypothetical questions about the president’s power to thwart terrorist attacks, and he asked whether Trump is forever unable to address immigration in light of his campaign statements.