After appealing the case to the Seventh Circuit, the two sides drew perhaps the highest-profile three-judge panel possible. Sitting across from them in court were Posner, an idiosyncratic jurist and the nation’s most frequently cited legal scholar; Easterbrook, an erudite textualist who Justice Antonin Scalia once said should replace him on the Supreme Court; and Diane Sykes, whom Donald Trump has more than once cited as his potential choice to fill Scalia’s seat.
Fisher’s efforts may have been doomed from the start. Other Republican-led states have also waged futile legal battles over the past year over Syrian refugee resettlement. A federal judge in Texas dismissed the state's lawsuit against the Obama administration in June; one week later, his counterpart in Alabama did the same with a similar complaint there.
But he defended the governor’s order nonetheless. Among the lower court’s more significant rulings was that the order violated Title VI of the Civil Rights Act of 1964, which forbids discrimination “on the basis of race, color, or national origin” in federally funded programs. Fisher tried to argue before the panel that the order was guided by security concerns, not by geography.
Easterbrook sounded unimpressed. “When a state makes an argument that’s saying, ‘we’re differentiating based on whether someone is from Syria, but that has nothing to do with national origin,’ all it produces is a broad smile,” he told Fisher.
Also central to Indiana’s argument were statements by FBI Director James Comey before Congress last October that Syrian refugees would be harder to vet because the U.S. had a smaller presence in Syria than in other countries. This comment, as well as similar ones by other U.S. officials, justified Pence’s order blocking the refugees, Fisher argued.
Easterbrook again seemed skeptical about the logic. “Wait, the governor of Indiana knows more about the status of Syrian refugees than the U.S. State Department does?” he asked. “And that’s the ground for the decision?”
“No, what he’s saying is that based on the testimony before Congress, we don’t know enough about these refugees and we need to find out more,” Fisher countered as Easterbrook audibly sighed.
For Posner, the unspoken context in which the order was issued also stood out. “Are Syrians the only Muslims Indiana fears?” he asked at one point.
Fisher paused briefly. “Well, this has nothing to do with religion,” he began to protest, but Posner continued. “Oh, of course it does,” he told the solicitor general.
“Oh, I object to that, Your Honor,” Fisher said, with a hint of indignation.
“Look, if you look at the terrorist attacks in the United States—9/11, Boston, San Bernardino—they’re all by Muslims. ISIS is Muslim. Al-Qaida was Muslim, alright? You understand that, don’t you?” Posner continued.