Appellate Judges Trade Barbs Over Supreme Court Emergency Docket

Federal appeals court judges butted heads about the role of the Supreme Court’s emergency docket and how much weight lower courts should give those orders, with one judge lamenting his colleague’s “rhetorical assault” on the high court.

The disagreement between judges on the US Court of Appeals for the Fourth Circuit played out in a series of separate concurring and dissenting opinions on Friday, in a case related to the Trump administration’s government efficiency unit, known as DOGE.

The majority of the en banc court decided to throw out a lower court ruling against DOGE, given that the Supreme Court had already lifted the lower court’s order while litigation continued on its so-called emergency docket.

The decision prompted a rebuke from Judge James Wynn. The Obama appointee argued his other colleagues were improperly treating Supreme Court emergency docket orders—typically issued during earlier stages in litigation without much or any explanation—as precedent they must follow.

“To treat interim orders as binding precedent abandons our long-held jurisprudence of deciding constitutional law through reasoned opinions, not emergency motions made under intense time pressure,” Wynn wrote in a separate opinion. “More profoundly, it would weaken the public’s confidence in the integrity of our judicial system’s commitment to deliberation and transparency.”

He also warned lower courts against taking an invitation to “fill gaps in Supreme Court reasoning with our own assumptions about what must have been decided.”

“That is not deference, it is judicial activism at its worst,” Wynn said.

Growing Frustration

Friday’s opinions follow growing frustration among federal judges tasked with interpreting the justice’s findings from its interim orders on the emergency docket, where the justices vote to halt or greenlight challenged actions at early stages in litigation while it moves through the lower courts.

It’s sometimes referred to by critics as the “shadow docket” for its lack of transparency, as the high court majority often doesn’t include their reasoning when issuing these orders.

The docket has grown in recent years, drawing concerns from both liberal and conservative justices that it forces quick decisions without full briefing.

Justice Sonia Sotomayor, speaking at the University of Alabama School of Law on Thursday, described a “disagreement” among the justices about the docket’s “efficacy.” Justice Ketanji Brown Jackson said last month that the court’s increasing willingness to intervene was creating a “warped” system that “is not serving the court or our country well at this point.”

Wynn was joined by four of his colleagues in his separate opinion on Friday. Judge Robert King, a Clinton appointee, wrote separately too that the Supreme Court’s stay order in this case should have “no role” in the appeals court’s analysis over the lower court injunction.

But Judge J. Harvie Wilkinson III, a Reagan appointee, shot back in his own concurring opinion that Wynn’s warning “creeps too near the water’s edge of defiance for my comfort” and described his colleague’s opinion as a “rhetorical assault upon the Supreme Court.”

Wilkinson reasoned that interim orders are “real proceedings with legal effect” that have “appreciable bearing” at this stage of the case.

He and other circuit judges who sided with the majority pointed to a high court stay decision in a separate case last year that stated that while interim orders “are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.”

“My colleagues jump too quickly onto the bandwagon of those who condemn each and every use of the Supreme Court’s emergency docket, no matter how justified,” Wilkinson wrote, joined by three other appellate judges. “The unfortunate effect of Judge King and Wynn’s approach will be to aggrandize the role of the lower federal courts at the expense of the Supreme Court’s own place in a hierarchical judicial system.”

Wynn responded in a footnote that Wilkinson “mistakes disagreement for insubordination.”

“If anything creeps towards the ‘water’s edge,’ it is the notion that lower courts must divine binding doctrine from orders that say nothing of the kind,” Wynn wrote.

DOJ Corrections

The judges also disagreed with each other over how to handle the federal government’s admissions, after the lower court had issued its injunction, that it gave the court inaccurate information. The acknowledgment is part of a string of examples where the Justice Department has had to make corrections in federal court.

King wrote that the situation shows that “going forward, we should not accord the defendants any benefit of the doubt or readily trust in anything they say.”

However, Judge Toby J. Heytens, a Biden appointee writing for the majority of judges on the en banc court, said while the government’s admissions are “alarming,” the appeals court is limited to the record before it, even if incorrect. He said the Maryland federal judge presiding over the case “will be free to consider any future requests for appropriate relief or corrective action” once the case returns to that courtroom.

Friday’s dueling opinions stem from the full court’s decision to vacate an earlier court order that restricted access by employees of the Trump administration’s Department of Government Efficiency to sensitive Social Security data.

Heytens noted in the majority opinion that the Supreme Court had already paused the lower court’s injunction for the duration of any appeals, meaning the contested injunction “cannot currently protect anyone from anything” regardless of the appeals court’s findings. He sent the case back to the Maryland federal court for further proceedings.

The case is American Federation of State, County and Municipal v. SSA, 4th Cir., No. 25-01411, 4/10/26.