Not long ago, I described how one of the most respected conservative judges in the nation during my law school days was J. Michael Luttig. Judge Luttig, of the Fourth Circuit, was often on the short list to be a Supreme Court Justice, and considered a top “feeder” judge to prized Supreme Court clerkships, especially for members of the Federalist Society.
So in recent years, as Judge Luttig has raised alarms about Trump’s excesses, and the fraying of our national rule of law, we should all pay attention.
But he wasn’t the only Fourth Circuit star at the time.
There is another: Judge J. Harvie Wilkinson of the Fourth Circuit—a Reagan appointee—has also been among the most highly regarded conservative jurists in the nation for a generation. Also a “feeder” to the Supreme Court, and also an oft-mentioned potential Supreme Court justice.
Which makes the opinion he wrote yesterday as striking as Judge Luttig’s warnings. Every American should read the words he carefully chose in rejecting the Trump Administration’s effort to defy a recent 9-0 Supreme Court order demanding that it “facilitate” the release of Kilmar Abrego Garcia from the foreign gulag to which he was sent in error.
Here is the opening of Wilkinson’s Order:
“It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.
This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”
Got your attention?
Wilkinson continues:
“The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process….Moreover, the government has conceded that Abrego Garcia was wrongly or “mistakenly” deported. Why then should it not make what was wrong, right?”
The opinion then summarizes that the Supreme Court unanimously ordered the Trump Administration “to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” (This essentially rebuts public lies by Trump and his minions about what the Supreme Court had ruled).
While granting some discretion to the government, Wilkinson writes, that language does not “allow the government to do essentially nothing."
“Facilitate” is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear….The plain and active meaning of the word cannot be diluted by its constriction, as the government would have it, to a narrow term of art.”
The opinion continues: “‘Facilitation’ does not permit the admittedly erroneous deportation of an individual to the one country’s prisons that the withholding order forbids and, further, to do so in disregard of a court order that the government not so subtly spurns. ‘Facilitation’ does not sanction the abrogation of habeas corpus through the transfer of custody to foreign detention centers in the manner attempted here. Allowing all this would ‘facilitate’ foreign detention more than it would domestic return. It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.”
Wilkinson then warns about the consequences if Trump’s argument is given credence: “If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to “take Care that the Laws be faithfully executed” would lose its meaning. U.S. CONST. art. II, § 3; see also id. art. II, § 1, cl. 8.”
The court also took note of the absurd event at the White House between Trump and El Salvador’s president: “Today, both the United States and the El Salvadoran governments disclaim any authority and/or responsibility to return Abrego Garcia. See President Trump Participates in a Bilateral Meeting with the President of El Salvador, WHITE HOUSE (Apr. 14, 2025). We are told that neither government has the power to act. The result will be to leave matters generally and Abrego Garcia specifically in an interminable limbo without recourse to law of any sort.”
The opinion then highlights recent calls to impeach judges and ignore court orders (including by the vice president), and how dangerous both are: “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.”
The court closes by challenging the Trump Administration to uphold the rule of law: “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.”
That part won’t happen, of course.
But kudos to Judge Wilkinson and his colleagues for explaining to America the stakes of this case, and this moment. We can only hope that at least two conservative-leaning justices at the Supreme Court listen to a man they would have spent their younger years looking up to. Heck, they probably tried to clerk for him.
You can read the entire opinion HERE.
Patriot of the Week: Chris Van Hollen
Maryland’s Senator stared into the faces of two autocrats….and won:
Day 137 — April 17, 2025
A sitting US Senator—Alaska’s Lisa Murkowski—acknowledged that she and her colleagues feel personal fear and retaliation if and when they stand up to Donald Trump.
“Retaliation is real.”
First, that is disturbing.
Second….as real as it may be, once you give into that fear, all is lost. We must all stand up.
Be Chris Van Hollen.
Share this post