When the terrrorist ban makes it to the Supreme Court, it will be upheld. Not just because it’s clearly allowed by the law of the land, but because the independence of the judiciary needs to be preserved.
Even with only eight justices, SCOTUS would uphold the law. Breyer and Kagan might be the most likely liberal justices to vote correctly here, but it wouldn’t surprise me if the Court were unanimous in favor of the terrorist ban.
But why take that risk? The Trump administration would prefer a face-saving way to delay the Supreme Court appeal until Justice Gorsuch is seated. And a Ninth-Circuit appellate judge may have just provided it.
The anonymous judge (Kozinski?) just requested that the Ninth Circuit reconsider the case “en banc,” i.e. with a larger panel of Ninth-Circuit appellate judges. The parties have until the 16th to brief the court on whether there should be an en-banc hearing. If there’s an en-banc hearing, the additional briefing, oral arguments, and decision(s) will take more time after the 16th.
SCOTUS could also decide to hear the case sua sponte (of its own volition.) But that is unprecedented, and even more unlikely given these circumstances. SCOTUS hates having to decide this case. It will only do so when it must.
So expect the appeals process to play out a bit more, until Justice Gorsuch can be seated, and Trump appeals to SCOTUS. Then we win.