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.
“This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”
Those words came not from a liberal jurist or a civil liberties activist, but from Judge J. Harvie Wilkinson III, a Reagan appointee to the 4th Circuit Court of Appeals and one of the most respected conservative jurists in America. In a blistering opinion released yesterday, Wilkinson laid bare what’s at stake in the Abrego Garcia case: nothing less than the rule of law itself.
What triggered this extraordinary rebuke? The government “asserting a right to stash away residents of this country in foreign prisons without the semblance of due process.” For weeks now, the Trump administration has played a dangerous constitutional game with Kilmar Abrego Garcia, who was illegally trafficked to a Salvadoran prison despite a court order explicitly barring his deportation. When three separate courts — including the Supreme Court — ordered them to facilitate his return, administration officials mocked the very idea they could help and have since defied judicial commands with increasingly brazen contempt.
Over the last few days they ratcheted up the rhetoric, falsely claiming that (1) he wasn’t just a member of MS-13 but a “top” member who was also somehow “a terrorist,” (something for which multiple Article III courts have said there is no evidence to support) that (2) he was “arrested with rolls of cash and drugs” when he was simply wearing a sweatshirt that had an image with cash on it and someone else who was arrested with him had a small bag of weed in a pocket (3) that he was engaged in “human trafficking” (just completely made up bullshit).
In her statement to CNN, Vasquez Sura said she sought a civil protective order in 2021 after a disagreement with Abrego Garcia. Vasquez Sura noted she had survived a previous relationship that included domestic violence. She did not appear at a court hearing and the matter did not proceed.
“Things did not escalate, and I decided not to follow through with the civil court process,” she said in the statement. “We were able to work through this situation privately as a family, including by going to counseling. Our marriage only grew stronger in the years that followed. No one is perfect, and no marriage is perfect.”
“That is not a justification for ICE’s action of abducting him and deporting him to a country where he was supposed to be protected from deportation,” she added. “Kilmar has always been a loving partner and father, and I will continue to stand by him and demand justice for him.”
Of course, even if all the smears against Garcia were true, none of it justifies violating the legal order that prevented him from being deported to El Salvador without any due process. That’s all that matters.
And if being accused of domestic violence means you deserve to be sent to a concentration camp with no due process, this administration is going to run out of people working for it very, very soon, because so many of them have faced similar accusations at one time or another.
It’s the standard Fox News playbook: when confronted with a victim of government overreach, pull out the “he’s no angel” template and fill in whatever blanks you can, evidence be damned. But no matter how many accusations they hurl, the fundamental fact remains unchanged: Abrego Garcia has never been convicted of a crime, and the U.S. legal system had explicitly barred him from being sent to El Salvador, let alone to a concentration camp.
But why let pesky facts get in the way of a good character assassination?
Which brings us back to Judge Wilkinson’s extraordinary opinion. After Judge Xinis scolded the DOJ for ignoring her order, the administration appealed yet again to the Fourth Circuit, where the panel had already rebuked them once. This time, Judge Wilkinson — a Reagan appointee once considered for the Supreme Court under George W. Bush — decided enough was enough.
Wilkinson is a famously right-wing Republican judge. He also, somewhat famously, is quite often willing to bless executive government overreach. Hell, he authored the (later overturned!) opinion that it was okay for the US government to seize and lock up an American citizen at Guantanamo with no charges or due process when he was found fighting with the Taliban in Afghanistan.
It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.
This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
As Wilkinson points out, no matter what the administration accuses him of, in the US he still deserves due process:
The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. See 8 C.F.R. § 208.24(f) (requiring that the government prove “by a preponderance of evidence” that the alien is no longer entitled to a withholding of removal). Moreover, the government has conceded that Abrego Garcia was wrongly or “mistakenly” deported. Why then should it not make what was wrong, right?
He also completely dismantles the claim made by Stephen Miller and Pam Bondi that the Supreme Court’s decision allows the White House to do nothing. That’s just bullshit:
The Supreme Court’s decision does not, however, allow the government to do essentially nothing. It requires the government “to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” Abrego Garcia, supra, slip op. at 2. “Facilitate” is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear. See Abrego Garcia, supra, slip op. at 2 (“[T]he Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”). The plain and active meaning of the word cannot be diluted by its constriction, as the government would have it, to a narrow term of art. We are not bound in this context by a definition crafted by an administrative agency and contained in a mere policy directive. Cf. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024); Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000). Thus, the government’s argument that all it must do is “remove any domestic barriers to [Abrego Garcia’s] return,” Mot. for Stay at 2, is not well taken in light of the Supreme Court’s command that the government facilitate Abrego Garcia’s release from custody in El Salvador.
From there, Wilkinson makes abundantly clear he knows that the Trump administration is playing games. He notes that they’re obviously frustrated with the rulings against them, but that does not give them the ability to simply ignore those rulings. He talks about the separation of powers, and how the judiciary clearly has the power to tell the executive branch when it is violating the laws or the Constitution. And he warns of what will happen if the Trump White House decides it can just ignore the courts:
Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.
And he closes with a clear statement directed at the White House that going down the road they clearly wish to go down will do great damage to the concept of America:
It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.
When a renowned conservative jurist — one who previously ruled it was legal to detain American citizens without charges at Guantanamo — warns a Republican president that he is threatening to destroy the rule of law and wreck “the American ethos,” that’s more than a legal opinion. It’s a desperate attempt to pull the country back from the brink.
As if to immediately test Wilkinson’s warning about the “public perception of lawlessness,” the very same day brought a stunning development that would expose the administration’s claims as hollow. Despite earlier being denied, Maryland Senator Chris Van Hollen was suddenly given the opportunity to meet with Abrego Garcia, proving that he was still alive and accessible (and allowing him to learn that many people are fighting for his basic rights).
I said my main goal of this trip was to meet with Kilmar. Tonight I had that chance. I have called his wife, Jennifer, to pass along his message of love. I look forward to providing a full update upon my return.
The timing couldn’t have been more revealing. On the same day a federal judge warned the administration about a constitutional crisis over its claim that accessing Garcia was impossible, a U.S. Senator managed to do exactly that.
Salvadoran President Nayib Bukele, who had previously denied he even had the ability to release Garcia, posted some images of Garcia and Van Hollen meeting, though (of course) with a snarky bit of commentary, very much giving off “I’m not mad at all” vibes:
The claim that they were “sipping margaritas” was revealed to be completely staged nonsense, as apparently Bukele aids showed up with the props solely for the misleading photoshoot:
Mr. Bukele, in a social media post, even crowed that “Kilmar Abrego Garcia, miraculously risen from the ‘death camps’ & ‘torture,’” was “now sipping margaritas with Sen. Van Hollen in the tropical paradise of El Salvador!” But according to a person familiar with the situation,a Bukele aide placed the two glasses with cherries and salted rims on the table in front of Mr. Van Hollen and Mr. Abrego Garcia in the middle of their meeting in an attempt to stage the photo.
It’s also pretty clear that the government gave Garcia fresh clothes (different from every other photograph of anyone in CECOT) as well as a baseball cap to cover up the shaved head that the guards at CECOT give to every prisoner sent into the concentration camp.
Bukele later posted, “I love chess,” pretending that this was all a strategic move, rather than one that makes him look incredibly weak. Bukele caved here, as the pressure on him has been increasing, and even he has to realize he’s losing this battle massively. Bukele tried to recover by then posting that Garcia “gets the honor of staying in El Salvador’s custody.”
But now he’s revealed that he absolutely can produce Garcia when a US government official shows up asking for him.
Even leaving aside the basic “what crime was he convicted of in which court” question that should accompany him “staying in El Salvador’s custody,” the fact of this meeting completely undermines the claims made by both Bukele and the Trump White House regarding their supposed inability to return Garcia to the United States.
If anyone was playing chess here, it appears those on the side of due process and rule of law have a much stronger position. They’ve shown that it is entirely possible for Bukele to produce Garcia, especially under political pressure from the United States. That bodes poorly for the Trump administration that earlier in the day had filed yet another “status report” in Judge Xinis’ court again failing to abide by her order and again professing that its hands were tied.
The meeting exposes a damning reality: for all of Trump’s boasts about being the ultimate dealmaker, a Democratic Senator accomplished what his administration claimed was impossible. The administration’s entire defense — that they had no ability to access Garcia — collapsed in an embarrassing instant.
Judge Wilkinson’s ruling called back to President Eisenhower, who was willing to set aside his “personal opinions” to abide by the laws of the United States, as defined by the courts.
It is in this atmosphere that we are reminded of President Eisenhower’s sage example. Putting his “personal opinions” aside, President Eisenhower honored his “inescapable” duty to enforce the Supreme Court’s decision in Brown v. Board of Education II to desegregate schools “with all deliberate speed.” Address by the President of the United States, Delivered from his Office at the White House 1-2 (Sept. 24, 1957); 349 U.S. 294, 301 (1955). This great man expressed his unflagging belief that “[t]he very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of Government will support and [e]nsure the carrying out of the decisions of the Federal Courts.” Id. at 3. Indeed, in our late Executive’s own words, “[u]nless the President did so, anarchy would result.”
With Van Hollen’s visit, we now have definitive proof of what Judge Wilkinson suggested: it is absolutely possible for the US to secure access to Abrego Garcia. The district court, the appeals court, and the Supreme Court have all said — unanimously — that the White House must take affirmative steps to facilitate Garcia’s return to face the basic due process owed to everyone under our Constitution.
We now stand at that precise precipice Eisenhower warned about. Will the Trump administration continue defying the courts, pushing us toward what Eisenhower called “anarchy”? Or will the rule of law prevail?
The coming days will reveal whether this administration recognizes what Judge Wilkinson called its “unique chance to vindicate” the rule of law “while there is still time.” But with each passing day of defiance, the damage to our constitutional order grows deeper.
