Shortly after the Supreme Court released its preliminary ruling on Trump Travel Order, I appeared on the Tony Katz Show, WIBC Indianapolis.

Here are some of my comments:

“Nine Justices agreed on this. Nobody said the 4th and 9th Circuit injunctions should continue in full force and effect. Not a single Justice said that. The only question was how much of a slap down they were going to give to the 4th and 9th Circuits, and I think they gave a substantial one….”

* * *

“All the progressives out there, who were popping champagne corks and all that sort of stuff with these lower court decisions, they got slapped down by all nine Justices, including Ruth Bader Ginsburg, the leading liberal on the court, at least to a substantial part of the lower court orders. So that’s what the media’s not really reporting here.

Whenever something good happens for Republicans or Trump, I like to watch CNN and MSNBC to see how they react. And they were both playing this as, ‘oh well, the court only partially reinstated, blah, blah, blah’.  So they were trying to downplay it. In fact, nine Justices agreed that what the lower courts did was improper, the only disagreement was how improper it was.”

After this lengthy discussion, Tony asked me to explain whether I thought this was a precursor of a decision on the merits. My response, in part:

While this isn’t a ruling on the merits, it’s a ruling on what they call a ‘stay application’ to put a hold on the lower court injunction, the standard for doing that is pretty high. You have to show that there is a substantial likelihood that the person seeking the stay – meaning Donald Trump – is going to prevail.

… I think it’s highly unlikely that you’re going to get a decision in October that says, ‘You know what? the 4th circuit and the 9th circuit were right after all.’ I just don’t think that’s likely.

At the end, he asked me whether I though Justice Kennedy would retire before the next term. Here’s part of my response:

I don’t know, I mean he’s been there 30 years, he’s 81 years old. On the other hand, sometimes these justices don’t want to give it up. I mean this is what their life is. They obviously enjoy it. I mean it’s stressful, but no indication [Kennedy] is incapable of going forward.

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