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The Week Ahead – February 13, 2017

The Court has no oral arguments scheduled for this week, but will have Conference on Friday.

Late on Thursday, the Ninth Circuit declined to issue a stay of the district court’s TRO of President Trump’s travel ban. It also set a schedule for full briefing. On Friday, the Ninth Circuit issued an order, prompted by at least one judge (presumably not one of the judges on the original panel) asking the parties to brief whether the court should rehear the motion for a stay en banc. Those papers are due later this week.

It remains to be seen whether the Court will weigh in on the travel ban, as the Trump administration has sent mixed signals on whether it will seek review. The Washington Post reports that Chief of Staff Reince Preibus said Friday night that the administration is considering an appeal to the Court. This came minutes after another official said the administration would not seek certiorari. The Post speculates that the Administration might ask the Court for immediate intervention.

The New York Times reports on Trump’s options, which include two roads to the Supreme Court: a conventional petition for review following the Ninth Circuit’s full review of the appeal or an emergency application asking the Court to stay the trial court’s ruling. If he does the latter, the Court could act within days. Times reports  that the Justices would not hear arguments, but would “issue a very brief order announcing the outcome with little or no legal reasoning.” The case has become particularly tangled procedurally, in part as a result of the Administration’s insistence on an appeal. An interesting and quite critical look at the Ninth Circuit’s actions so far can be found here.

In an unusual confluence of popular culture and the Supreme Court, an upcoming case was highlighted at the Grammy Awards on Sunday night. Actress and transgender activist Laverne Cox, who appears on the Netflix show, Orange is the New Black, introduced Metallica and Lady Gaga. During her introduction, Cox said: “Everyone, please Google ‘Gavin Grimm.’ He’s going to the Supreme Court in March. Hashtag stand with Gavin.” Gavin Grimm is the teenage boy whose rights are at issue in Gloucester County School Board v. G.G., a Supreme Court case scheduled to be argued at the end of March. As the Washington Post explains, the case began when Grimm and his parents sued to require the school district to let him use the boys’ restroom. The district court and the Fourth Circuit both ruled in Grimm’s favor, but the Supreme Court stayed those orders pending its review. The litigation implicates an Obama Administration interpretation of federal anti-discrimination law, and LGBTQ activists are now lobbying the Trump Administration not to backtrack.

Check out ISCOTUSnow this Wednesday for “The Gorsuch Report: The Latest News on the Nomination Process” where we will update the latest news on Judge Gorsuch’s nomination.