Appeals Court Judges Publicly Admonish Supreme Court Justices
Frustrated federal appeals court judges publicly wrestled Thursday with how to follow vague “signals” from the Supreme Court contained in tersely worded — and often unexplained — orders handed down on the justices’ emergency docket.
Some judges on the 4th Circuit Court of Appeals even questioned whether they still had a role to play or were expected, at least in some cases, to simply reiterate the high court’s orders and leave it at that.
“They’re leaving the circuit courts, the district courts out in limbo,” said Judge James Wynn, an Obama appointee, during oral arguments in a case about the Department of Government Efficiency employees’ access to Social Security data. “We’re out here flailing. … I’m not criticizing the justices. They’re using a vehicle that’s there, but they are telling us nothing. They could easily just give us direction and we would follow it.”
“They cannot get amnesia in the future because they didn’t write an opinion on it. Write an opinion,” Wynn said. “We need to understand why you did it. We judges would just love to hear your reasoning as to why you rule that way. It makes our job easier. We will follow the law. We will follow the Supreme Court, but we’d like to know what it is we are following.”
During the remarkable, 80-minute venting session Thursday at the Richmond-based court, judges openly debated how to follow the justices’ sparse guidance while fulfilling their own constitutional duty to issue detailed rulings in complex cases.
“The Supreme Court’s action must mean something,” said Judge J. Harvie Wilkinson III, a Reagan appointee. “It doesn’t do these things just for the kicks of it.”
Much of the uncertainty was triggered by a July order from the justices that emphatically informed lower courts they are obliged to follow the Supreme Court’s rulings on its so-called emergency docket, even in cases that have not yet reached the high court.
The 4th Circuit judges are far from the first to suggest the Supreme Court is muddying the waters with some of its emergency docket decisions.
In a ruling last week in a high-profile case over the Trump administration’s targeting of Harvard University, U.S. District Judge Allison Burroughs said a series of high court rulings on the administration’s efforts to end various government grants “have not been models of clarity, and have left many issues unresolved.” She added that sometimes those rulings appear to shift the law “without much explanation or consensus.”
Another appeals court, the Boston-based 1st Circuit, issued a ruling Thursday laboring to interpret the effect of an unexplained Supreme Court emergency order green-lighting Education Department layoffs on the appeals court’s approach to a case involving the Trump administration’s dismantling of other, smaller government agencies. The 1st Circuit panel concluded the cases were not similar enough to warrant rote application of the Education Department ruling.
Despite recent umbrage expressed by Justices Neil Gorsuch and Brett Kavanaugh — suggesting lower court judges had flippantly defied high court emergency-docket rulings — the public debate among the 4th Circuit judges underscored continuing confusion on the lower courts about precisely how to follow those decisions in practice, especially when they lack any detailed reasoning.
Compounding that issue in the case argued Thursday, about sensitive Social Security Administration information, is that in June the Supreme Court overruled the 4th Circuit’s decision and lifted an injunction against DOGE’s use of the data.
By an apparent 6-3 vote, the justices went further, saying that no matter what the appeals court decided, the injunction would remain on hold until the case returned to the Supreme Court. Yet, the high court’s majority offered no substantive rationale for the lower court to parse.
That left many of the 15 4th Circuit judges on hand for Thursday’s unusual en banc arguments puzzling at their role. One even suggested the appeals court should simply issue a one-line opinion saying the injunction is lifted and kick the case back to the Supreme Court to resolve.
However, some judges said they were obliged to consider and rule on the case like any other, even if the high court has already decided that any such ruling would be of no immediate effect.
“It sounds like some of my colleagues think that there’s no work to be done, that we’re done because the Supreme Court has told us what the answer is,” said Judge Albert Diaz, an Obama appointee.
Judge Robert King said punting on the case would be a mistake.
“We each have a commission and we have a robe and we have an oath to abide by,” said King, a Clinton appointee.
Diaz opened Thursday’s court session by observing the anniversary of the Sept. 11, 2001, terrorist attacks and offering a prayer for the family of Turning Point founder Charlie Kirk, who was shot dead in Utah Wednesday, as well as those involved in a school shooting in Colorado the same day that left two students wounded and the apparent shooter dead.
“We pray for them and also more importantly hope and pray that somehow this country will find a way to end the senseless violence that seems to have overtaken us in a way that has become almost unimaginable,” Diaz said.
Josh Gerstein is POLITICO’s Senior Legal Affairs Reporter. Gerstein covers the intersection of law and politics, including Special Counsel Robert Mueller’s investigation of President Donald Trump and his associates, as well as ensuing counter-investigations into the origins of the FBI’s initial inquiry into the Trump-Russia saga.
Kyle Cheney is a senior legal affairs reporter for POLITICO. Cheney joined the Congress team after covering the 2016 presidential election on POLITICO's politics team. He covered the Republican primary field with a focus on the national GOP, the Republican National Convention and the internal machinations of the party as it adjusted to the emergence of Donald Trump.
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