Judge Biery’s Opinion, Adroitly and Incisively Annotated

On the 31st day of January, U.S. District Judge Fred Biery issued his now-famous Opinion and Order granting the petition filed by the lawyers of asylum seeker Adrian Conejo Arias and his son, 5-year-old Liam Conejo Ramos, freeing them from detention at the ICE facility in Dilley, Texas.

On February 2, I opined on “a Wise Judge and a Heartless Regime,” attempting to capture the essence of the Judge’s decision.

I could have saved our readers some time and effort if I had just waited one more day.

For, the next day, A. O. Scott, critic at large for the New York Times Book Review, calling Judge Biery’s decision “much more than a dry specimen of judicial reasoning…a passionate, erudite and at times mischievous piece of prose,” superbly “[annotated] the barbed wordplay of a decision challenging the Trump administration’s theory of executive power.”

A critique about which President Barack Obama said on LinkedIn, “Here’s a useful reminder of what our federal courts SHOULD be doing to uphold our constitutional traditions.”

Of course, I urge readers to take in Scott’s entire “analysis,” “In Under 500 Words, a Judge Weaponized Wit to Free the Child Detained by ICE,” at the New York Times, but here are a few “teasers.”

After reviewing the events that led to the Judge’s decision and briefly describing Judge Biery’s background (Clinton appointee…”known for his wit and writerly flair”…”cheeky double entendres”…”a judge with a little extra to say”), Scott describes how “[i]n fewer than 500 words, Judge Biery marshals literature, history, folk wisdom and Scripture to challenge the theory of executive power that has defined Trump’s second presidency.”

Scott then gives some examples of how Judge Biery “does it,” starting with what many – including this writer – have overlooked: the small-print footnote, ”1. Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807); Sir William W. Blackstone, Commentaries on the Laws of England (1765-1769); see also Magna Carta, Article 39.”

About the footnote, Scott writes:

Judge Biery’s footnote directing readers to Blackstone’s commentaries and Magna Carta may be intended to give a remedial lesson to members of the administration. His larger point, though, is that to flout the guarantee of habeas corpus — as he insists the current deportation policy has done — is to threaten the integrity of the American constitutional order itself.

On the Judge’s claim that “The case has its genesis in the ill-conceived and incompetently-implemented government pursuit of daily deportation quotas, apparently even if it requires traumatizing children…” Scott believes that the Judge “calls attention to the grandiosity and sloppiness of the administration’s position while suggesting that its overreach reflects a more sinister intention.”

Judge Biery points out the “government’s ignorance of an American historical document called the Declaration of Independence” and lists four of the “enumerated grievances against a would-be authoritarian king over our nascent nation.”

On this, Scott comments:

As the 250th birthday of American independence approaches, the president is being cast as King George III. The federal government’s indifference to habeas claims places it on the wrong side of the historical divide between individual liberty and unchecked state power, and thus at odds with the founding documents of the Republic.

After quoting the Judge’s message on how the government is defying “that pesky inconvenience called the Fourth Amendment” and the Judge’s “Civics lesson to the government” citing that “Administrative warrants issued by the executive branch to itself do not pass probable cause muster…” which the Judge calls “the fox guarding the henhouse,” Scott writes:

A barnyard metaphor puts the matter in plainer language: Because executive authority has the potential to be predatory, it needs to be checked by the judiciary branch. Judge Biery might also be sending a sly message to his colleagues on the U.S. Supreme Court, who have looked favorably on many of Mr. Trump’s expansive claims of executive branch power.

Just as he paid attention to the footnote, Scott scrutinizes the language, style, even capitalization the Judge uses wen rendering his decision — such as his choice of the verb “trumps” — and suggests:

The language in which the judge renders his decision also sends a message, in this case to the president himself. Capitalization is a hallmark of Mr. Trump’s style, as it is of American legalese. The paragraph granting the petition bristles with uppercase nouns, which makes it all the more striking that the president’s name, otherwise absent from the ruling, is rendered in lowercase, as a card-table verb.

He adds, “This may be a subtextual swipe at the president’s ego, but it’s consistent with the decision’s fundamental argument, which is that the president — any president — is ultimately smaller than the law.”

Judge Biery’s closing lines are:

Philadelphia, September 17, 1787: “Well, Dr. Franklin, what do we have?” “A republic, if you can keep it.”
With a judicial finger in the constitutional dike,
It is so ORDERED.
SIGNED this 31st day of January 2026.

Referring to this, Scott himself concludes with:

Benjamin Franklin famously (and perhaps apocryphally) pointed out the fragility of orderly self-government, while the Dutch boy immortalized in the 19th-century novel “Hans Brinker, or the Silver Skates” did what he could to protect his neighbors from the fury of the unchecked sea.

That Judge Biery puts himself in their company suggests that he sees this decision less as a final judgment than as a warning.

Finally, Scott brings our attention to the two references to verses from the New Testament the Judge quotes beneath the photo of young Liam (which he credits to a “Bystander”): Matthew 19:14 and John 11:35, which, although not quoted by the Judge, “speak for him all the same.”

Scott writes:

Matthew 19:14

The Matthew verse — “But Jesus said, Suffer little children, and forbid them not, to come unto me: For of such is the kingdom of heaven” — is a well-known statement of compassion and care.

John 11:35

So, in its way, is John 11:35, the shortest verse in the English Bible. It is often quoted when things are so terrible that all other words fail:
“Jesus wept.”

Amen!

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