Photograph by Nathaniel St. Clair

If you’ve been following the federal courts’ scattershot decisions on Trump’s domestic troop movements, you may feel a bit spun around. One week democracy has a good day in some district, then a week later, another jurisdiction starts the military dictatorship juggernaut rolling toward us again.

To an outside observer, the whole spectacle might appear as fickle as the Italian trials and appeals (convictions and reversals) of Silvio Berlusconi and Amanda Knox.

The federal court system is a porous vessel for justice, increasingly cracked by Trump’s appointed flunkies. In this upside down world, leftists are left wishing his appointees were real not pretend federalists who placed a true premium on states’ rights.

Cracked but not fully shattered. Even Trump appointed judges are capable of understanding that dictatorship is bad for commerce—and some actually care about civil liberties.

For instance, on October 4, Trump-appointed Oregon federal district Judge Karin Immergut stopped Trump from unleashing the National Guard on Portland, admonishing:

This country has a longstanding and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs. … This is a nation of Constitutional law, not martial law.

Thanks and duh! But seriously, thanks, we need some duhs.

On October 20 though, two Ninth Circuit Court of Appeals judges of a three-judge panel—also Trump appointees—reversed Judge Immergut and gave Trump his toy soldiers back, ruling: “The evidence the President relied on reflects a colorable assessment of the facts and law within a range of honest judgment.” (Citations and internal quotes omitted.) As if!

The third judge on the panel—Susan Graber, a Clinton appointee—vehemently dissented, writing:

[T]oday’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions.

But another court round is likely coming, and the pro-democracy frogs have better field position heading into it.

Here’s why we the frogs are positioned to win the next legal round:

Judge Susan Graber, the Ninth Circuit dissenter, suggested that the whole Court reconsider (rehear) the matter “en banc.” That means the Court will now have to decide, by a simple majority vote of its active judges, whether or not to do so.

The standard is high, and the Ninth Circuit rarely grants en banc rehearing. If my (that is, ChatGPT’s) stats are correct, in 2024 the Court chose only 29 times to consider granting en banc review, and elected to do so in only nine cases. In seven of them, the en banc panel modified the outcome of the case.

But a case of this magnitude—a significant match in the wider dictatorship vs. democracy tournament—has a high likelihood of crossing the threshold of en banc rehearing.

The Ninth Circuit Numbers:

• The “whole Court” is not the whole Court. Rather, an en banc panel consists of 11 judges out of the Court’s total active 29.

• If a majority of these 29 judges vote to rehear the Portland Guard deployment case en banc, then 10 randomly chosen ones among them, plus the Court’s Chief Judge, will form the en banc panel.

• The Court’s Chief Judge, Mary Murguia, was appointed by Obama.

• Of the Court’s other 28 active judges, 15 were appointed by Democrats, and 13 by Republicans.

• The three Panel judges who sided with Trump in the original decision are excluded from participating, unless any of them is a “Senior Judge,” in which case that judge can choose to remain eligible for random en banc panel selection.

• The two Panel judges who decided the Portland Guard Deployment case in Trump’s favor—Ryan Nelson and Bridget Bade—were appointed by him. They are not Senior Judges and are disqualified from sitting on the en banc panel.

• However, the dissenting Judge, Susan Graber, who was appointed by Clinton, is a Senior Judge and therefore may allow herself to remain in the selection pool.

Factoring this all in, there is (according to ChatGPT) an 86 percent likelihood that if the Ninth Circuit votes to rehear the Portland Guard deployment case en banc, the 11-judge panel will feature a majority appointed by Democrats.

That ups Portland and Team Democracy Frogs’ prospects. And as we’ve seen, even Trump appointed judges (and country music singers bravo!) can align with the Constitution, compassion, and the rule of law.

In addition, the en banc consideration process could take a few weeks to play out, likely staying Trump’s boots off the ground for now.

So rejoice! The federal judicial system is no more erratic than a sport in which we the frogs can leap to victory from time to time …

… at least until the Supreme Court cuts our legs out from under us again.

But not today or tomorrow, Satan!

(Re my collaboration with ChatGPT: Take heart that while it worked for a few minutes total on the tasks I gave it, I spent several human hours writing this piece.)

This first appeared on Ben Rosenfeld’s Substack page.

The post There’s Another Legal Round Coming in the Case of Trump vs. Portland appeared first on CounterPunch.org.

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