But the real test will come in October, when the Court will learn whether the President took his victory laps, yes, but recognized that he is not going to win on the merits, and therefore backed off and and announced that the “temporary” travel ban was successful, and that no further extension is needed.

Unfortunately, the bet has to be that Trump will overplay his hand, double or triple down, and get smacked badly by the Supreme Court.

To me, the Court’s implicit message is the opposite of that posited by Justice Thomas, who wrote that the lifting of much of the injunction demonstrates that the President is likely to win on the merits. But if that was true, then the entire injunction would have been stayed. Thus, both the actual holding of the case and the implicit message are the same: the individual plaintiffs were able to show both irreparable harm (to themselves) and a likelihood of success. They won in the Supreme Court, and the Administration lost.

If the President doesn’t wise up and moot the case by announcing victory and then backing off on any follow-on Executive Orders, it’s still my view that the Supreme Court will:

a) ignore the Fourth Circuit’s Establishment Clause approach (because that is just too tricky, and also unnecessary);

b) issue a ringing endorsement of the role of the courts in resolving disputes, especially when it is the other two branches that are the disputants; and

c) because of b), adopt the Ninth Circuit’s approach (the surprisingly well behaved lower court here).

The key statutory argument is this. Congress gave the President a tremendous range of discretionary action–let’s call it X. But that means that the Congress also prohibited the President from taking action outside of X–because that would both an abuse of discretion and also an encroachment on powers belonging exclusively to Congress.

The courts are not overstepping their bounds by insisting that the President hew to boundaries set by Congress. It is in fact what Article III courts do. The key example to show abuse of discretion? The EO says that “lots of foreigners have come here to engage in terrorists acts,” but essentially none of those have come from the six named countries. So, Mr. President, under your logic and your facts, why did not the ban extend to Saudi Arabia, Pakistan, Norway or Canada, which had either many more miscreants, or just as few?

The answer: the ban was just for show, and the six countries were picked essentially at random, because they would resonate nicely with the public. That’s an abuse of discretion that harmed US citizens and entities, and it cannot stand while the Article III courts are still open. Anything else, and we become a nation of men (or one man), not laws.