Today's oral argument in Trump v. Hawaii — the "Muslim ban" case we now (pretty much) know Trump will win.

Here's Mark Walsh at SCOTUSblog reporting on the big oral argument on the last day of the 2017 Term — Trump v. Hawaii. I haven't read this yet, but from the short article I have read (at the NYT), I think everyone knows Trump is going to win.  I'll live-blog my reading, giving you snippets and comments.

Walsh begins with the weather — "warm but drizzly day" — and observations of who's in the gallery — Orrin Hatch and "a touch of true celebrity and talent when Lin-Manuel Miranda, the author (and original player of the title role) of the Broadway hit 'Hamilton'" and Josh Blackman (who tweets a photo of the autograph he got from Miranda on his pocket copy of the U.S. Constitution) — so this is chronological and grandiosely whimsical.

Walsh calls the argument a "fast-moving, hard-hitting hour" and clues me in that there's another post at SCOTUSblog that's the "main account" of the substance of the argument. I'll get to that. I continue with Walsh.

U.S. Solicitor General Noel Francisco argues passionately... “This is not a so-called Muslim ban,” Francisco says. “If it were, it would be the most ineffective Muslim ban that one could possibly imagine since not only does it exclude the vast majority of the Muslim world, it also omits three Muslim-majority countries that were covered by past orders, including Iraq, Chad, and Sudan.”

Justice Elena Kagan presses him with a hypothetical involving a president “who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency” before ending up with “a proclamation that says no one shall enter from Israel.”

“This is an out-of-the-box president in my hypothetical,” Kagan says, to laughter in the courtroom.

Francisco responds that it is a “very tough hypothetical,” but “if his cabinet were to actually come to him and say, Mr. President, there is honestly a national security risk here and you have to act, I think then that the president would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.”

Neal Katyal, arguing for Hawaii, stressed that Congress should have to legislate, and why hasn't it?

“Well,” the chief justice replies, “Imagine, if you can, that Congress is unable to act when the president asked for legislation.” 

Sarcasm. It gets laughs from the gallery.

Here's the Amy Howe analysis, the other SCOTUSblog post, which I'm also live-blogging my reading of. Notice that Walsh never mentioned Justice Kennedy, and I know from reading the NYT that Kennedy said something that I think deflated all hope that he might join the liberals and squelch Trump.

Indeed, Howe begins by observing that a majority "appeared ready to rule for the government."

... Chief Justice John Roberts and Justice Samuel Alito – were clearly worried that a ruling for the challengers might entangle courts in second-guessing the president’s national-security determinations. Roberts led the way, asking attorney Neal Katyal, who represented the challengers, to imagine a scenario in which U.S. intelligence agencies tell the president that 20 Syrian nationals are planning to come to the United States with chemical weapons. Could the president ban all Syrians from coming to the United States, Roberts asked?...

Katyal responded that such a ban would pass muster. He reasoned that it wouldn’t be discrimination based on nationality, which immigration laws prohibit, but instead would be an effort to address a fast-moving emergency...

Is there any situation, [Alito] queried, in which the threat of terrorism could be so severe that the scheme that Congress enacted would be inadequate to deal with the problem? Katyal agreed that there could be, but that response got him into hot water with Justice Anthony Kennedy. So the courts need to determine whether there is an emergency? Kennedy asked.

Kagan echoed Kennedy’s concern, observing to Katyal that the September 2017 order points to the important national-security issues at stake. How is the Supreme Court supposed to determine the legality of the president’s order, she asked, without evaluating whether those national-security interests are real?

Oh! Might Kagan vote to uphold the ban? That would lend heft to Trump's victory. And this isn't just about Trump. This is about all future Presidents and the future of vexatious litigation in the courts.

Justice Stephen Breyer seemed to have a different concern. The September 2017 order leaves open the possibility that citizens of the countries included on the order could still come to the United States if they fall within one of the exceptions to the order or qualify for a case-by-case waiver. Although it was not entirely clear, Breyer seemed to be suggesting that, if the possibility of an exception or waiver is a real one, rather than simply “window dressing,” he might be willing to uphold the order.

So Breyer too may vote with the majority.

In the end, the government may not get the votes of either Breyer or Kagan.... Although it’s always risky to make predictions based on the oral argument, it’s difficult to see how Hawaii can pick up the five votes that it needs to strike down the president’s order.

And there you have it.

I've referred to it a few times, so let me also link to Adam Liptak and Michael D. Shear at the NYT, "Key Justices Seem Skeptical of Challenge to Trump’s Travel Ban":

Immigrant rights groups had hoped that Chief Justice John G. Roberts Jr. or Justice Anthony M. Kennedy would join the court’s four-member liberal wing to oppose the ban. But their questioning was almost uniformly hostile to the challengers....

Justice Kennedy pressed Mr. Katyal about whether judges should second-guess a president’s national security judgments. “That’s for the courts to do, not the president?” he asked, skeptically.

Mr. Katyal responded that presidents ordinarily deserve substantial deference. But he said the travel ban was so extreme that the Supreme Court should step in.

Justice Kennedy noted that the latest travel ban was longer and more detailed than proclamations issued by earlier presidents. He also appeared to speak approvingly of a part of the proclamation that called for periodic reports....