In an opinion today, Ninth Circuit judge Lawrence VanDyke concurred in a panel’s judgment of remand to the district court in the interminable proceedings in East Bay Sanctuary Covenant but also offered some choice words about “how the latest chapter in this sad, protracted saga powerfully illustrates an unhealthy condition afflicting the very foundations of our national government.” Some excerpts from his seven-page opinion, which I recommend you read in full:

The first challenge is the ease with which just one (district) or two (circuit) judges can effectively dictate nationwide policy on monumental issues, even where the legal validity of the judges’ decisions is dubious. That of course is hardly a secret; indeed, it is currently a topic of robust national conversation.
The second challenge is related, but less well known, and so bears discussion. This problem is that one or two unelected judges do not just prescribe national policy on prominent issues, but their policy prescriptions, even when controversial and legally suspect, often last for very long periods of time with no plenary Supreme Court review of the merits—and often longer than any single President could ever serve….
Here, judges on our circuit have engaged in a coordinated dance with sometimes-collusive litigants to manipulate proceedings in what makes little rational sense except as a sustained effort to safeguard a single judge’s ability to both direct national policy and avoid Supreme Court review. I can think of no other explanation for my colleagues’ willingness to grant an unexplained (and wholly unsupported) stay to the Biden administration after previously ruling the opposite with regard to the Trump administration’s very similar rules. Nor can I think of any other reason for the Biden administration’s refusal to seek certiorari. Nor for my colleagues’ eagerness to help the parties’ legally vacuous but apparently politically motivated request to place this case in abeyance.
All this intentional shielding from Supreme Court review is not good for our national government. By the time this case percolates back through the court system and is ready for Supreme Court review—assuming it isn’t judicially sidelined again—more than a decade will have passed where just one or two lower court judges will have imposed their preferences on critically important immigration policies for the entire nation. And at that point there may be yet another administration change and perhaps another basis for arguing that this case still just isn’t quite ready for the big leagues yet. Meanwhile, key national issues can easily spend many years languishing in lower court purgatory, enabling one or two judges to dictate long-term national policy effectively free from Supreme Court oversight.