The Ninth Circuit’s decision to deny en banc review in Washington v. Trump was not, of course, the biggest development yesterday in litigation related to the President’s executive orders restricting entry from seven six overwhelmingly Muslim countries. But the Ninth Circuit’s denial of reconsideration—and, more specifically, Judge Bybee’s dissent from the denial—is worthy of attention nonetheless, not just because of what it tells us about the internal dynamics of what is arguably the nation’s second most important court (sorry, D.C. Circuit), but also because Judge Bybee’s opinion represents the most articulate argument to date by a sitting federal judge for upholding the President’s actions on immigration.
First, reading the tea leaves: Note that Judge Bybee’s dissent was joined by just four of his colleagues, Judges Bea, Callahan, Kozinski, and Ikuta. That tells us something about the prospects in the Ninth Circuit for Trump Travel Ban version 2.0. There are 25 active judges on the Ninth Circuit, seven of whom were appointed by Republican Presidents. Some Ninth Circuit judges might have voted against rehearing en banc because they think that review of a panel decision regarding Trump Travel Ban Version 1.0 is a poor use of the court’s limited resources now that the release of version 2.0 has mooted the issue. So too, some Ninth Circuit judges who voted against en banc review in Washington v. Trump might conclude that version 1.0’s infirmities do not extend to its successor.
Still, if I were the White House counsel or Trump’s new solicitor general, I would not look at the 20-5 vote and like my odds.
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