Let's not assume good faith

On March 15, five 9th U.S. Circuit Court of Appeals judges dissented from an order denying en banc review in Washington v. Trump, the appellate decision that upheld a temporary restraining order on President Donald J. Trump's "Muslim Travel Ban 1.0." (One day later, an amended order added into the mix separate opinions by dissenting Judges Alex Kozinski and Carlos Bea, an additional concurrence by Judge Marsha Berzon, and an addition to Judge Stephen Reinhardt's prior concurrence.) The order itself is otherwise procedurally unoffending. The 9th Circuit merely pulled the plug on further review of the first travel ban because the Trump administration had withdrawn the order and there was no longer a case in controversy.

Substantively, the dissent thought the panel got it all wrong. Its main thrust is that the lower court owed more judicial deference to the executive under constitutional separation of powers principles. The opinion employs a common trope in legal circles when judges praise their own restraint and excuse inaction ? that judges are not "Platonic Guardians." The dissent turns into, rather, a homily regarding "the best American traditions," and respecting the consequences of elections, even when one disagrees with the outcome. In effect, the disappointed should wait their turn.

The first problem is that one litigant before the courts, this president, plainly is not acting within the best American traditions. Nor is he playing by the Marquess of Queensberry rules to which the dissent clings. In fact, he is mocking those constitutional norms and the judges who would enforce them. In the words of the president's own most recent Supreme Court nominee, Neil Gorsuch, Trump's criticisms regarding the judiciary are "disheartening and demoralizing."

Indeed, no president in American history has so flouted American traditions and political norms as this one, including his astonishing disrespect and contempt for federal courts. He just doesn't disagree with adverse rulings, he publicly retaliates by berating judges and challenging judicial legitimacy. When it suits his purpose, he makes ad hominem attacks regarding judges' heritage, intelligence, and upon any interpretation of law that conflicts with his will to power. He even allowed one aid to declare from a White House podium that there is no judicial supremacy, a provocative proclamation at odds with the one of the most defining and innovative aspects of the American constitutional structure.

These new circumstances put in play one key implied assumption made in previous cases that otherwise deferred to the executive on foreign policy matters, including the executive's factual findings and policies. It is that the executive, both himself and itself, is acting in good faith. Heretofore, when courts apply the most deferential standard of review, once the executive has made a "bona fide" argument in support of an order, the inquiry usually ends. It is assumed the executive is at least loosely doing its job within constitutional parameters, and the election cycle and other branches are up to the task of keeping the executive on the straight and narrow.

When, however, there is obvious, abundant, mounting, sustained and overwhelming background evidence that notionally "bona fide" arguments by the executive are, in fact, plainly pretextual, courts continuing to pretend that, and rule as if such executive action is in good faith mocks the very term. Legal fiction becomes just fiction. Circumstances have, rather, changed. Constitutional doctrine and sound interpretation of that doctrine had better change to meet the challenge of these new facts on the ground.

The second problem is that the dissent's stated raison d'être holds no water. It is that the en banc proceeding should have gone forward, even though the Justice Department withdrew from the effort, so that the 9th Circuit could give guidance on how district courts should handle future similar efforts. Stated alternatively, it's standing gone wild. Given that "Muslim Travel Ban 2.0" was just around the corner, that there surely would be new factual showings and, of course, that the administration would attempt to expedite the inevitable appellate review in any circuit other than the 9th, it feels like these dissenting judges simply felt left out of the process. They wanted to extend their influence over judges who are deciding cases and controversies actually before them, even though they didn't have one themselves. After all, the dissent goes well beyond expounding on the importance of judicial economy and giving good guidance to lower courts. It actually analyzes what the law should have been regarding a case no longer before it. That the dissent could only muster five votes tends in reason to show a majority of the judges sitting in the 9th Circuit thought the three-judge panel got it basically right. Paradoxically, then, the dissent gives lower courts even more incentive to follow the panel's written opinion as it stands. This suggests the dissent's purpose really was directed elsewhere all along.

This leads to the third problem. The opinion's author doth protest too much. No judge should need to recite how his opinion is directed to legal issues and not merely the judge's personal preference for or against the government's policies. Yet the dissent's first footnote prominently raises the banner. It is no small irony that the dissent ends with the judge deploring departures from, and urging a return to civility in discussing these issues. The dissent's author, Judge Jay Bybee, is famously co-signatory to the torture memos prepared when he worked for the Bush administration, the legal cover for torture employed at Guantánamo and Abu Ghraib. That memoranda is, many believe, an egregious, premeditated departure from accepted legal and ethical norms.

Bybee's dissenting opinion comes in the context of a president who, while candidate, promised to do even worse than waterboarding, "much worse." And his dissent comes in the context of, with no colorable standing, an unsolicited argument for deferring greater power to the administration on matters of foreign policy. Philosopher Stanley Kavell once wrote a book with the clever title, "Must We Mean What We Say." Bybee does not say he is importing an ideological template onto the bench.

Bybee's appeals to a rhetorical legal formalism and his pleas to be taken in good faith notwithstanding, it is no ad hominem argument to point out that it at least appears this dissent is part of a continuing process and effort, conscious or otherwise, at normalizing, if not rehabilitating otherwise disreputable legal and ethical values. At a minimum, the appeal to formalism and deference to the executive is a defense and validation of how those values have leached into the body politic, including its halls of power. Had that torture memo come to light during his nomination process, the Senate likely would not have confirmed him, still another example of an executive in bad faith withholding from a coordinate branch relevant fact. And, if there ever was a judge who might be the last to recognize the latent danger this administration poses of normalizing otherwise deleterious constitutional and ethical values, this is the one, the four corners of his legal argument notwithstanding.

As if to prove the point, the dissent, in arguing that Kerry v. Din (2005) should be the controlling authority in deciding such immigration cases, acknowledges that Justice Anthony Kennedy indicated in Din it is appropriate to "look behind" the government's exclusion of a person if there is "an affirmative showing of bad faith on the part of the consular officer who denied the visa." Yet, the dissent adds, if the executive makes a bona fide argument, then the court, applying the correct standard of review needn't look behind the order. It is as if it does not matter how far the administration pins the tail away from the donkey's ass, it will always be close enough for these judges. It is as good as no review at all.

What's left is a dissent contending that court critics must not challenge the good faith of judges clinging to legal formalism. Courts, in turn, employing a rigid constitutional interpretation, must not challenge the president's good faith. It is a mode of legal thinking whereby otherwise piously and carefully presented legal argument can be used to justify almost anything, including discrimination against Muslims or, even, torture. It explains how the resulting process can produce almost anything, including discrimination against Muslims or, even, torture. As it has.

In an old economics joke, a can of soup washes ashore. The physicist says, "Let's smash the can open with a rock." The chemist says, "Let's build a fire and heat it first." The economist says, "Let's assume we have a can opener..."

Five conservative judges standing on an island without standing say, "Let's assume everyone is acting in good faith." Let's not.