On Wednesday, the U.S. Court of Appeals for the 9th Circuit declined to vacate a unanimous panel’s February ruling, which maintained a nationwide injunction against Donald Trump’s first travel ban. That decision means the February order will remain on the books and serve as precedent going forward. The famously liberal Judge Stephen Reinhardt wrote a short concurrence featuring an oblique jab at Trump, stating that he was “proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.” But a much lengthier rebuke to Trump came from the pen of one of America’s most conservative judges, Jay Bybee.
You may remember Bybee as an author of the torture memos, which he signed while serving in George W. Bush’s Office of Legal Counsel. These memos authorized the brutal torture of detainees at Guantánamo and Abu Ghraib. But they did not become public until a year after Bush had appointed Bybee to the 9th Circuit, where he still sits today.
Bybee is a quintessential conservative judicial activist in the vein of Justice Samuel Alito. But it seems he also holds a deep respect for the independence and integrity of the judiciary. Bybee, joined by four other circuit judges, wrote a dissent from Wednesday’s vote explaining why he thought the panel’s original decision was incorrect. But he ended his opinion with a sharp reprimand to Trump, criticizing his disturbing attacks on the district and circuit court judges who blocked his first travel ban.
“I wish to comment on the public discourse that has surrounded these proceedings,” Bybee wrote. “The panel addressed the government’s request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues.” Then came the kicker:
The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.
The courts may be split on the legality of Trump’s efforts to exclude a wide swath of people from the United States on the basis of their nationality and religion. But they appear to be united in their disgust for Trump’s efforts to scare the judiciary into quiet compliance with his agenda.
