from the judicial-anarchy dept
We’ve been tracking the growing judicial revolt against the Supreme Court’s shadow docket nonsense, from individual district judges getting snarky in footnotes to anonymous judges speaking to reporters. But what happened Thursday at the Fourth Circuit Court of Appeals crosses into entirely new territory: a full en banc panel of federal judges openly criticizing the Supreme Court’s approach during a live oral argument session.
This isn’t normal. Federal judges don’t usually air their grievances about the Supreme Court in open court. The fact that an entire appeals court panel—including respected conservative judges—turned their oral argument into what Politico called “a remarkable, 80-minute venting session” tells you everything about how broken the system has become.
The immediate catalyst was trying to figure out what to do with a case about DOGE’s access to Social Security data after the Supreme Court issued one of its trademark unexplained emergency orders. But the real issue was much bigger: how are lower courts supposed to function when the highest court in the land operates like it’s playing Calvinball?
“They’re leaving the circuit courts, the district courts out in limbo,” said Judge James Wynn… “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.”
Judge Wynn didn’t stop there:
“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.”
I’ve been writing about the law for almost three decades. I’ve never seen anything like this. Ever. Not even in the same zip code as this. These are judges crying out for help under a completely lawless Supreme Court.
And, no, this wasn’t just liberal judges complaining. Judge J. Harvie Wilkinson III—a Reagan appointee and one of the most respected conservative jurists in the country—was right there with them:
“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.”
Even Wilkinson can’t figure out what the hell the Supreme Court is doing. When you’ve lost Harvie Wilkinson—a judge so conservative and institutionally minded that he’s basically judicial royalty—you’ve completely broken the system.
The specific case that triggered this judicial revolt involves the Supreme Court’s typical shadow docket bullshit. In June, the Court overruled the Fourth Circuit’s decision and lifted an injunction against DOGE’s use of Social Security data. But they did so in the most bizarre and troubling way. After sending the case back to the Fourth Circuit for more review, it said that even if the Fourth Circuit rules that DOGE is breaking the law, the stay will remain in place.
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.
So the Supreme Court basically said: “We’re overturning you, and also whatever you decide doesn’t matter anyway, but we’re not going to tell you why.” This left the entire Fourth Circuit panel wondering what the fuck they’re even supposed to do.
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.
Some judges thought they should just give up entirely and punt the case back to SCOTUS since SCOTUS has already said whatever they decide here doesn’t actually matter. Others insisted they had a constitutional duty to actually do their jobs:
“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.
This perfectly captures the impossible position the Supreme Court has created. Lower court judges literally don’t know if they’re supposed to do their jobs or just rubber-stamp whatever vibes they think they’re getting from the shadow docket.
The whole mess stems from a series of recent Supreme Court shadow docket rulings (without much explanation) basically telling lower courts they have to follow SCOTUS shadow docket rulings (also without much explanation) as binding precedent. But as we’ve written about extensively, these aren’t reasoned legal decisions—they’re often unexplained orders issued with minimal briefing, no oral arguments, and little to no explanation of any reasoning.
This has created a situation where experienced federal judges—people who’ve spent decades interpreting legal precedent (often longer than the Justices themselves)—literally can’t figure out what the Supreme Court wants them to do.
What we’re witnessing is the breakdown of the federal judiciary as a functioning institution. When Reagan and Obama appointees are united in open revolt, and Harvie Wilkinson can’t figure out what the Supreme Court wants, the system has collapsed.
The three liberal Justices have been warning about this in dissent after dissent, while the conservative majority just keeps issuing more unexplained orders and then getting pissy when lower courts can’t read their minds. This isn’t jurisprudence. It’s government by judicial decree, where constitutional law operates on vibes and the only consistent principle is “give Trump whatever he wants.”
When federal judges with decades of experience are reduced to public pleading for basic guidance during oral arguments, we’ve crossed into judicial authoritarianism. The Supreme Court has effectively told the entire federal judiciary: “Follow our orders, but we won’t explain what they mean, and if you guess wrong, we’ll scold you for defying us.”
That’s not how precedent works. That’s not how courts work. That’s not the rule of law. It’s just nine people in robes demanding deference to their unexplained whims.
Filed Under: 4th circuit, doge, guidance, harvie wilkinson, james wynn, judges, precedent, robert king, scotus, shadow docket, social security, supreme court, vibes
