As a general matter, the line up of amici in a significant case provides some indication of how institutions are lining up on the issue. If this were an issue on which the country were split, one might expect that those in support of the administration and those challenging Trump’s Executive order would be in rough balance.
So, I engaged in a quick research project and looked at the Ninth Circuit docket entries, which are here.
There are approximately twenty briefs, and only two were in support of the Executive Order. One is from from Freedom Watch., and the other does round up a number of the usual suspects, with the list reading as follows:
Amici Curiae U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center
In contrast to the outpouring of states, technology businesses, law professors, advocacy organizations, etc supporting the challenge to the Order, this is a remarkably weak display.
No states, no Republican officeholders, no businesses. Only a few frequent litigators and a few far-right frequent fliers, heavy on guns, English language monopoly, and border control. Not a cross section of even just conservative America, let alone America as a whole.
That suggests to me the deep ambivalence of the institutional structures of our society, not only about the Order, but about the administration from which it came.
This adds to the increasing evidence that the policies of the last three weeks are built on shifting sand in terms of support. At a minimum, this gives the courts far more freedom to follow the law, knowing that if that triggers a formal constitutional crisis (rather than just the de facto one we already have), the courts will have almost all the system on their side.