“Make this one out of cast-iron,” the late Judge John Butzner said to me one day in chambers. “There are going to be a lot of weasels sniffing around it.”
I was Butzner’s clerk. He was assigning me to draft an opinion in a case on an abstruse point of federal law. No court had ever decided this particular question—and a lot of money was riding on the answer. Some judges on the Fourth Circuit would object to the result his panel had reached. Once Butzner’s opinion was published, they might try to persuade the other judges to rehear the case “en banc”—meaning on a bench including all members of the Circuit.
It was a high-stress assignment, even though he gave me all the time I needed.
Imagine the atmosphere in chambers this week as three Ninth Circuit judges and their clerks worked frantically to produce an opinion in Washington v. Trump—the case testing the constitutionality of President Trump’s executive orderbanning refugees from around the world, and all visitors from seven predominantly Muslim countries.
They had 48 hours. And they could hear sniffing at the door.
The opinion is written with remarkable care. Even though it is strictly preliminary, one of the criteria the court applies at this stage is called “likelihood of success on the merits.” In other words, if the court thought the government would win on the underlying issues, it would have reinstated the travel ban.