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."
