These five judges joined in the analysis of the court in Boston in accepting the rational basis for the President’s actions. They insisted that “so long as there is one facially legitimate and bona fide reason for the President’s actions, our inquiry is at an end.”

The opinion has all of the legal analysis that is so conspicuously absent in the panel decision, which dismissed or ignored countervailing case law of the Supreme Court and even the Ninth Circuit. The panel poignantly noted:

We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security against the real suffering of potential emigres. As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy. For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches—and perhaps especially when we disagree—we have to trust that the wisdom of the nation as a whole will prevail in the end.

The only judges to join in a written defense of the denial were the three judges from the panel — Judges William Canby, Richard Clifton, and Michelle Friedland — and perhaps the most liberal member of the Ninth Circuit, Judge Stephen Reinhardt. The original panelists noted that “The matter failed to receive a majority of the votes of the active judges in favor of en banc reconsideration.” Reinhardt added a not-so-veiled dig at critics (and likely the President himself): “I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.”

It is also worth noting that Bybee clearly indicated the judges — liberal and conservative alike — opposed the attacks by President Trump on judges: