Everyday my conviction that I understand the legal system

After a quick scan of the DC Circuit opinion on the Flynn case, three quick thoughts:
(1) I am confident the majority view on this panel does not represent the majority view on the DC Circuit, which greatly disfavors granting mandamus relief.

— Benjamin Wittes (@benjaminwittes) June 24, 2020

.... gets a little shakier.

I tell myself lawyers felt this way when the Warren court was in full cry and changing law in America, from Brown to criminal procedure to miscegenation laws (which made marriage a criminal act!) to Roe.  I know lawyers who still think Roe is the right decision but the Court gave all the wrong reasons.  I understand that kind of argument.

I don't understand this one, from the D.C. panel.  There are ways they can let it stand.  There are ways they can reverse it.  Which will they choose?  HowthefuckdoIknow?  I thought this mandamus action was a joke to begin with.

Witte gives as good a review and analysis of the case as I've seen, at least in tweets.  It's an appallingly bad decision.  Whether the system will save us from this kind of insanity, only the future knows.  Well, and the majority on the D.C. circuit.  Do they want to let this decision stand for the entire court?  Or will they decide disfavor of en banc review is overridden by being associated with such a ridiculous and indefensible result?

I confess I honestly don't know anymore, since Rao found one other judge on the court willing to go along with her.  Here's a clue, however.  The majority opinion is just over 19 pages long (barely over 18, actually).  9 of those pages deal with responding to the dissenting opinion.  That doesn't say much about the majority's confidence in its legal reasoning.  I think the dissent makes a fine case for why granting the writ of mandamus is procedurally unsound (what laypeople call a "technicality," but try running a sporting event of any kind without rules, and see how acceptable the outcome is).  That, it seems to me, is sufficient reason to review the decision en banc (by the full court) and reverse it.  Whether they will, only time will tell.

I've given up trying to.  I've lived too long, or learned the law too well.  I'm as out of step as Rip Wan Winkle waking up to praise King George, long after the Revolution.

A friendly reminder that any active judge on the D.C. Circuit can ask the full Court of Appeals to vote whether to rehear a panel decision “sua sponte”—that is, even without any party formally petitioning for such an “en banc” rehearing.

— Steve Vladeck (@steve_vladeck) June 24, 2020

Hope springs eternal.  And hooray for the rules.

Adding, further:  this, it seems to me, is particularly embarassing:

He should file. The mandate hasn’t issued. https://t.co/Jl73fgsXbY

— George Conway (@gtconway3d) June 24, 2020

As a simple act of courtesy the panel should have held it's opinion until the brief due today could be filed.  However, they showed not only that the brief would have made no difference, but that they weren't even interested in it. This opinion was not written this morning and filed immediately thereafter, so the timing is doubly embarassing.  And may well be the reason the full court takes this case up for review, even if the full court never says so.

The decision is bad enough, but this kind of sloppy practice is almost worse.  And bravo to Gleeson for making this as public as possible.

Responding to comments:

The Harvard Law of Animal Behavior holds that under controlled experimental conditions of temperature, time, lighting, feeding, and training, the organism will behave as it damn well pleases.

In my experience this particular hypothesis holds for judges as well.

You've been at it longer than I ever was.  I humbly (and happily) bow to your superior experience and knowledge.