Yesterday I said
the Administration should, in addition to rewriting the travel restriction executive order, take the present case up to the Supreme Court. That was based on a legal assessment that the Ninth Circuit decision is wrong. (See also Rivkin & Casey
in today's WSJ.)
In addition to the reasons that I gave yesterday, let me add that the claim that this order is a "Muslim ban" is absurd. Based on data from the Pew Center, I estimate that the seven countries in question have only 11% of the world's Muslim population. If one wanted to ban a whole group of people, an action that only affects one out of nine of the group is not the way to go about it.
However, sometimes there are strategic reasons for not taking a position. Even though the decision is wrong, and clearly so in my opinion, there may not be five votes on the present eight-member Supreme Court to overturn it. Affirmance by an equally divided court is a nothingburger, and that would be a real possibility.
Finally, and perhaps most importantly, the presence of this very hot-button case in the Supreme Court would give the Democrats and the left-leaning media ammunition in the critically important confirmation battle for Judge Gorsuch. The Democrats will ask him about the case or questions closely related to the case, he will decline to answer, and even though that declination is quite proper it will look evasive on camera. The Dems will still try to use it, of course, but their efforts will be less effective if it is behind us.
Sometimes you have to cut your losses and move on. While the Administration's legal position is correct, taking the case up to SCOTUS may not be strategically wise.Update
: The Ninth Circuit this afternoon ordered
briefing on whether to hear the case en banc.