The Travel Ban Case as a Per Curiam Opinion

There will be plenty of time to assess the arguments in the travel ban case that the Supreme Court will take up this Spring. Right now, I want to make a point about how the majority might style its opinion.

One thing we can say for certain is that IF the Court rules against the Trump Administration, the President will throw a tantrum. Knowing that is likely, you wonder if the majority in that scenario will choose to write its opinion as per curiam. There are two main reasons for leaving a lengthy appellate opinion unsigned. One is that the decision is genuinely the joint product of many members of the Court, thus no single person is truly the author. The other, as a judge explained to me long ago, is that in some cases involving the Mafia or other organized criminals judges would sometimes leave the opinion unsigned to avoid becoming targets. The latter might be something that the Justices in the majority will consider, unfortunately.

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10 Responses

  1. Brett Bellmore says:

    “The latter might be something that the Justices in the majority will consider, unfortunately.”

    Because Trump has such a horrendous record of retaliating against judges who issue rulings he doesn’t like. Look at Judge Watson; I hear a car backfired in front of his house, clearly a warning from the President of what would happen next if he keeps enjoining the President’s policies.

    Seriously, try not to be paranoid, it just makes you look silly.

  2. Gerard Magliocca says:

    Well, I obviously don’t mean that kind of targeting. C’mon—you’re better than that.

    • Brett Bellmore says:

      Well, what kind of “targeting” do you mean, then? Harsh words? Judges are made of sterner stuff than that, one hopes.

  3. Joe says:

    The Mafia reference is a bit silly. A reply to a comment said it was silly to think the justices were fearful of a physical attack, but that is what the reference brings to mind. I don’t think Chief Justice Roberts wants to spend a message that they are concerned about Trump carping here and doubt a per curiam will be the route. As with the enemy combatant cases during the Bush Administration, it will be by a signed opinion, probably with a signed dissent.

    • Brett Bellmore says:

      Precisely. If he didn’t mean violent targeting, he shouldn’t have mentioned the Mafia. They don’t criticize you, they break your kneecaps.

      Gerald knew what he was implying, even if he doesn’t want to own it.

  4. Gerard Magliocca says:

    I agree that judges should not be concerned about getting attacked for their rulings, though on the other hand in recent decades Presidents have not singled out judges for criticism in the way that Trump has. The per curiam route would make that more difficult.

    • Brett Bellmore says:

      No, he’d criticize the whole court, instead, and throw in that they’d been too cowardly to even attach their names to the ruling.

      I’m unaware there are any shrinking violets on the Court. They’re not going per curium out of fear of words.

  5. Orin Kerr says:

    I’d be surprised if any Justices who vote against Trump will be particularly worried about Trump’s reaction.

  6. Gerard Magliocca says:

    The Ninth Circuit opinion that the Court is reviewing, of course, was per curiam.