Judge Wilkinson's Opinion is Worth a Close Look

One problem, these days, is that there is so much “shit” that is “flooding the zone” – Steve Bannon’s metaphor, I  believe – that it is very difficult to know, from day to day, which amazing and unprecedented events matter, and which don’t.

Judge J. Harvie Wilkinson’s opinion for the 4th Circuit Court of Appeals in the Abrego Garcia case matters. Eugene has already excerpted much of the opinion here, and the full text is available here.

Though it was issued yesterday (!), it already feels like old news, superseded by Trump’s attacks on Fed Chairman Jerome Powell, Senator van Hollen’s visit to the El Salvador mega-prison where Abrego Garcia is being held, A U.S. threat to pull out of the negotiations to end the Ukraine war, etc. etc.

But I urge you, if you have not done so already, to spend a little of your time and attention on it.  It is a very powerful piece of legal prose, and it might well represent an important moment in the legal history of the United States.

As most (or all) readers of the Volokh Conspiracy surely know, Judge Wilkinson is a true conservative icon, one of the most highly respected conservative jurists in the country for the past 40 years. It gives added resonance to his plea to the Executive Branch:

“The basic differences between the branches mandate a serious effort at mutual
respect. The respect that courts must accord the Executive must be reciprocated by the
Executive’s respect for the courts. Too often today this has not been the case, as calls for impeachment of judges for decisions the Executive disfavors and exhortations to disregard court orders sadly illustrate.

Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph. It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

Emphasis added.

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