In September, my Civitas Outlook column chronicled the failed lower court revolt. I focused on several cases where federal judges, mostly in Boston, disregarded rulings from the Supreme Court's emergency dockets. Some of these judges maintained that they still did not know that these rulings were precedential. I would have thought Justice Gorsuch's concurrence in NIH v. APHA settled the matter. He wrote, "when this Court issues a decision, it constitutes a precedent that commands respect in lower courts." Gorsuch added that "This Court's precedents, however, cannot be so easily circumvented." But judges still are resisting.
Judge Wynn of the Fourth Circuit, who is able to read election results, is unable to read the emergency docket.
"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."
Speaking of amnesia, Judge Wynn is unable to remember why he decided to rescind his senior status.
Judge Brian Murphy, another judge in Boston, has also missed the memo. Indeed, Judge Murphy has already been stayed by SCOTUS twice in the same case. As I explained in September:
The first line of cases involves the executive branch's power to deport. Department of Homeland Security v. D.V.D. considered whether the government could deport certain aliens to South Sudan, which is known as a "third country." Right on cue, a federal judge in Boston blocked the removals. As a result, federal immigration officials were forced to hold the aliens at a military base in the African nation of Djoubti, because the judge ordered them to stay put. On June 23, the Supreme Court reversed the lower court's ruling, allowing the deportations to proceed. Justices Sotomayor, Kagan, and Jackson dissented. Yet, remarkably, the lower court didn't get the memo. Mere hours after the Supreme Court ruled, the Boston judge declared that another one of his earlier rulings "remain[ed] in full force and effect" notwithstanding the Supreme Court's order. Indeed, the judge cited Justice Sotomayor's dissent as authority.
The Department of Justice filed an unusual "motion for clarification" with the Supreme Court. The filing stated that the Boston judge's ruling was "a lawless act of defiance that, once again, disrupts sensitive diplomatic relations and slams the brakes on the Executive's lawful efforts to effectuate third-country removals." On July 3, the Supreme Court reversed this lower court, again. Most judges can go their entire career without a single ruling reaching the Supreme Court. However, this judge was reversed by the Supreme Court twice within a span of two weeks. The Supreme Court recognized that the lower court may have "failed to give effect to an order of this Court." But the Court assumed that the lower court would "now conform its order to our previous" ruling. Even Justice Kagan felt compelled to speak up. She did "not see how a district court can compel compliance with an order that this Court has stayed." It shouldn't take two Supreme Court orders for a Boston judge to figure out how to proceed. But this case is not an anomaly.
A benchslap from Justice Kagan didn't even leave a mark.
Fast forward to today. Judge Murphy held a hearing to decide this case on the merits. And he still maintains that the Supreme Court has told him nothing about the case.
"I can't read anything into what the Supreme Court told me," Murphy said, responding to a government attorney's citation to the high court's exhortation that their emergency docket rulings demand respect from lower courts.
"They didn't tell me anything," Murphy said. "I don't know why the Supreme Court issued a stay because in the decision by the Supreme Court I didn't get any information about why."
Murphy added:
"Murphy said that despite the lack of reasoning in the Supreme Court's order, he was "not going to try to circle around that," and he suggested that any decision he issues at this stage of the case would be subject to at least a temporary stay."
Has any judge ever been reversed by the Supreme Court three times in a single case? Third time's the charm!
Certainly the judges of the First Circuit must be pulling their hair out. Just this week, three Biden appointees had to reverse Judge Talwani, who once again found that defunding Planned Parenthood was unconstitutional. As Ed Whelan put it, "Three Biden appointees overturn Judge Talwani—and spare Supreme Court the burden of having to do so."
What is going on in Boston? Is there something in the water?
