Today's Ninth Circuit opinion doesn't necessarily sound like a typical Judge Wallace opinion.
Sure, it reaches the result you'd expect from Judge Wallace. It's a close immigration case involving a guy who's got a decent argument -- indeed, one that the asylum officer thought was right -- that he'll be tortured or killed if he's sent back to El Salvador. The guy has nonetheless been kept in detention (read: prison) with no bond hearing, and he thinks that's wrong. The Second Circuit agrees with him, and says that people like this are entitled to a shot to obtain bond. But Judge Wallace doesn't think so, and authors and opinion explaining why.
The Second Circuit is left of center, and Judge Wallace most definitely is not. Understandable. And with Judge Bybee also on the panel, the result isn't all that surprising.
But the language somewhat is.
This is not a strident, take-no-prisoners opinion. A type that Judge Wallace has definitely authored on multiple occasions in the past. Today's opinion is instead downright moderate, at least in tone. Take a look at Part III.D. of the opinion for a classic example in this regard. There's tons of stuff in there about how the panel knows it's (allegedly reluctantly) creating a circuit split by disagreeing with the Second Circuit, how immigration law in particular is supposed to be uniform, how it reaches its result an understanding that the Supreme Court might want to take the case up to make the law in all the circuits the same, etc.
That's not what you see in most opinions by Judge Wallace. Trust me.
Some might argue that, perhaps, Judge Wallace has somewhat mellowed with time. Maybe that's true, maybe -- quite possibly -- that's not.
Personally, I think the better explanation is found by looking at the third name on the panel. One who joins Judge Wallace's opinion in full. Judge McKeown.
Part III.D. sounds exactly like something that she'd write. Not that I'm saying that she did. But on occasion, to attempt to persuade another member of the panel, you write stuff that you think will get that person on board. Stuff that you might not otherwise say if someone else was on your panel. On occasion even adopting as your own suggestions from that other judge that you'd normally reject (or not have thought worth mentioning) on your own.
I think it quite plausible that the tone of today's opinion is explained in part by such a dynamic.
Which sometimes makes for a much more powerful (and/or palatable) opinion than would otherwise have been issued by a single judge acting on his own.
