The Trump administration’s 6-2 losing record in appeals courts over its mandatory immigration detention policy looks like an overwhelming streak of losses. However, a closer examination of the judges behind those decisions suggests the policy may be less legally doomed than the scoreboard implies.
Several of the legal defeats against the revised Immigration and Customs Enforcement detention policy were handed down by three-judge judicial panels containing two Democrat-appointed judges, while both of its victories were delivered by Republican-appointed majorities. Although judicial ideology does not explain every outcome, the pattern shows how randomly assigned three-judge panels can make an unsettled legal question appear more one-sided than it may ultimately prove before the Supreme Court.
