I think there's a clear 7-2 against this EO when its content will be considered. I do not think a lot of them enjoyed making this their stand against UIs; and you can hear in orals robert's frustration with the situation and various desires across the panel to find some way to thread the needle. I dont think any of the 7 trusted the goverment as far as they could throw them. This isn't a pro-trump court, nor one that believes any of this executive behaviour is credible. I think they were not at all pleased with how the case had been brought to them.
It's clear K's concurrence was written as a playbook for how to get to "the right outcome" in this case, and it will be followed. I suspect if that playbook wasnt available, they would have had a much harder time with getting to a judgement.
I actually wouldn't be surprised if the case is stronger than 7-2 on the merits, which makes this an even weirder vehicle: why would the conservative justices pick this case as a vehicle for this decision when there are, as you say, much clearer abuses of national injunctions?
> I dont think any of the 7 trusted the goverment as far as they could throw them. This isn't a pro-trump court, nor one that believes any of this executive behaviour is credible.
I think that's untrue on is face. Either that or the remaining conservative members have a commitment to allowed an untrustworthy executive to commit blatantly illegal acts on a temporary basis as long as they will be eventually addressed.
It's clear K's concurrence was written as a playbook for how to get to "the right outcome" in this case, and it will be followed. I suspect if that playbook wasnt available, they would have had a much harder time with getting to a judgement.