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On the Supreme Court's Last Day, Waiting for Trump Travel Ban Ruling

The Supreme Court approaches its last day of the term with two big questions unanswered: what's to become of Trump's travel ban and will Justice Kennedy retire?
Image: Trump listens as Justice Kennedy speaks before swearing in Judge Neil Gorsuch
President Donald Trump listens as Justice Anthony Kennedy speaks before swearing in Judge Neil Gorsuch as an Associate Supreme Court Justice in the Rose Garden of the White House in Washington, on April 10, 2017.Joshua Roberts / Reuters file

WASHINGTON — The U.S. Supreme Court heads into Monday, its last day of the current term, with two important questions so far unanswered: What's to become of President Donald Trump's travel ban and will 80-year-old Justice Anthony Kennedy retire?

The court will also announce the remaining decisions of the term, including the fate of laws in 39 states that bar direct taxpayer aid to churches and the ability of the parents of a 15-year-old boy to sue the federal border agent who killed him.

The Justice Department has urged the justices to lift bans imposed by lower courts blocking enforcement of the president's executive order on travel. It called for a 90-day ban on issuing visas to citizens of Iran, Sudan, Syria, Libya, Somalia and Yemen who want to come to the US.

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The administration argued that the measure had a legitimate national security purpose, allowing the government to assess the reliability of background information on visa applicants from six countries associated with terrorism.

The Fourth Circuit Court of Appeals, based in Richmond, Virginia, said the executive order amounted to unconstitutional religious discrimination. Its ruling cited campaign statements by Trump, who originally called for a ban on Muslim immigration.

Separately, a panel of three judges from the Ninth Circuit Court of Appeals said the order violated federal immigration laws that require a more substantial national security justification than the White House offered.

The Supreme Court is expected to announce whether it will take up the appeal of those lower court orders and, in the meantime, allow the government to enforce the executive order while the appeal is pending.

Speculation about a possible retirement by Kennedy also has been swirling for months, partly fueled by rumors. Sen. Charles Grassley, the Judiciary Committee chairman, said in April that he "would expect a resignation this summer," but added that he had no definitive information.

President Donald Trump listens as Justice Anthony Kennedy speaks before swearing in Judge Neil Gorsuch as an Associate Supreme Court Justice at the White House on April 10, 2017.Joshua Roberts / Reuters file

Kennedy will turn 81 in another month. A Ronald Reagan appointee, he has served on the Supreme Court for 29 years. Some friends say he has suggested that he might retire. But he has given no outward sign that he might, and he has hired his normal complement of law clerks for the coming term.

A Kennedy retirement would give Trump the ability to profoundly reshape the court. In many divisive cases, the court lineup tends to be four conservatives and four liberals, with Kennedy casting the fifth and deciding vote.

With Kennedy joining the conservatives, the court gutted the Voting Rights Act, reduced federal regulation of money in political campaigns, and declared that the Second Amendment provides an individual right to gun ownership.

Kennedy's votes with the liberals produced rulings striking down state laws against same-sex marriage, upholding abortion rights, and limiting the use of the death penalty.

"A Kennedy retirement would be an epic change," said Tom Goldstein, a Washington, D.C., lawyer and publisher of SCOTUSblog. "Kennedy is a conservative but has moderate tendencies. A replacement chosen by President Trump would give conservatives the solid majority on the court they've been hoping for since the Nixon administration."

Justices Ruth Bader Ginsburg, who is 84, and Stephen Breyer, 78, have shown no signs that they intend to step down.

Also Monday, the court will likely announce whether it will take or reject several appeals that have been piling up for months, including the right to carry a gun outside the home and whether businesses can refuse to provide their services for same-sex marriage ceremonies.