A three-judge panel dismissed the contempt of court investigation by Judge James Boasberg, as the majority members appointed by Donald Trump struck down the probe.
According to legal analysts, however, that doesn't mean the case is dead.
The Washington, D.C. appeals court can hear a case "en banc," which requires every judge on the panel to weigh in on the matter and make the final decision. Judges appointed by former Democratic presidents primarily lead the D.C. court.
Legal experts lined up to post on social media about the story to repeat the phrase "en banc." One law school associate professor even partially quoted "Mean Girls" with a legal twist.
The case involves the effort to stop the planes with migrants being sent to a brutal prison in El Salvador by using the Alien Enemies Act.
Lawfare's Roger Parloff pointed out that on Thursday night, the ACLU told Judge Boasberg "that many class members in the JGG case—Venezuelans sent to CECOT under the Alien Enemies Act and now in Venezuela due to the prisoner swap—still want to return to the US and resume legal battles here. It's sort of remarkable, given that it almost certainly means returning to ICE custody & risking ending up in South Sudan. But many of them had been in the process of seeking asylum from the Maduro regime at the time of their removal, so it also makes sense."
Other legal experts walked through what they anticipate is the next step.
Columbia Law School Professor Jamal Greene remarked, "Judge Pillard's opinion is crystal clear on the majority's abuse of mandamus here."
Mandamus is "an order from a court to an inferior government official ordering the government official to properly fulfill their official duties," explained Cornell Law School's legal information institute.
"Get in, losers, we’re going en banc," said Professor Evan Bernick.
American Immigration Council senior fellow Aaron Reichlin-Melnick similarly said that the ACLU might request such a ruling. He said it "remains one of the few options for direct accountability."
WUSA investigative reporter Jordan Fischer agreed, saying he anticipated the ACLU would make that move next.
One of the fears of going that route for teacher Aubrey Gilleran, however, is "with both Katsas and Rao in the majority, I expect it would end up upheld 6-3 at SCOTUS."
One retired Harvard Law graduate noted that there are 45 days for the en banc hearing.