Well, apparently, the 8th Circuit Court of Appeals isn’t the only federal appeals court willing to take the Supreme Court on a wild ride this election season...
This time, it’s the 4th Circuit — and U.S. Solicitor General John Sauer is asking the high court to step in for the second time in just over a month.
The latest chapter involves discounted broadcast advertising rates available during the weeks before an election. In March, the Federal Communications Commission’s Media Bureau issued guidance stating that political parties and certain joint fundraising committees purchasing ads in coordination with candidates could qualify for the same “lowest unit charge” (favorable rates) candidates receive.
Four Democratic congressional candidates — including Sherrod Brown (OH), Jon Ossoff (GA), Roy Cooper (NC), and Kristen McDonald Rivet (MI-08) — challenged that guidance. They first asked the full FCC to review it but, before the agency ruled, also took their challenge to the 4th Circuit.
In August, a divided panel sided with the candidates and set aside the FCC guidance. The National Republican Congressional Committee and National Republican Senatorial Committee then sought emergency relief from the Supreme Court.
On September 4, SCOTUS stayed the 4th Circuit’s ruling, concluding that the appeals court likely lacked jurisdiction because the FCC had not yet decided the candidates’ pending administrative challenge. The Communications Act, the Court explained, requires an aggrieved party to wait for the agency to act before heading to court. (And if this sounds vaguely familiar, it may be because I just covered it in yesterday's Skinny on SCOTUS installment.)
Seems straightforward enough, right?
Four days later, the candidates returned to the 4th Circuit — this time seeking a writ of mandamus (an extraordinary order compelling a government official or agency to perform a legally required duty).
On Wednesday, the same 2-1 majority ordered the FCC to decide the candidates’ application by noon Eastern on Friday — just 48 hours after issuing its ruling.
The majority’s logic is that the Supreme Court confirmed the FCC must resolve every application it receives, while the agency’s prolonged inaction has prevented meaningful judicial review before the election. The court has not yet reinstated its earlier decision invalidating the guidance, but it again declared the FCC’s position “plainly contrary to law,” leaving little mystery about what could happen once the agency does act.
Judge J. Harvie Wilkinson was having none of it, though.
“Litigants far and wide will be eager to purchase the majority’s new board game: Make The Supreme Court Say It Twice,” he wrote in dissent. “Once is enough for me.”
"Litigants far and wide will be eager to purchase the majority’s new board game: Make The Supreme Court Say It Twice. Once is enough for me, so I vote to deny the petition for a writ of mandamus." Judge Wilkinson, dissenting. New escalation here by the Fourth Circuit... https://t.co/sWWyi1kVS3
— Eric W. (@EWess92) October 8, 2026
SG Sauer apparently agrees. On Thursday, he filed a new emergency application asking SCOTUS to impose an immediate administrative stay and then block the 4th Circuit’s order while further review proceeds.
Sauer called the ruling a “flagrant abuse” of mandamus and a “baseless effort to circumvent” the Supreme Court’s prior stay. He contends the 4th Circuit has merely traded one procedural shortcut for another: Having been told it could not leapfrog the FCC, it is now forcing the agency to decide the matter immediately.
And in short order (and as I was writing this up), on Thursday afternoon, Chief Justice John Roberts hit pause. Acting in his capacity as the justice assigned to emergency matters from the 4th Circuit, Roberts temporarily stayed the appeals court’s order “pending further order” from him or the full Court. That relieves the FCC of Friday’s noon deadline while SCOTUS considers the government’s application. Roberts ordered the Democrat candidates to file their response by 5 PM Eastern on Saturday.
Now, there is an important distinction between this case and Missouri’s recent redistricting adventure in the 8th Circuit: The 4th Circuit has not yet reimposed the substantive relief SCOTUS stayed. Instead, it has ordered the FCC to take the action necessary to tee up another round of judicial review — on an extraordinarily compressed timetable.
Still, the unmistakable question now before the justices is whether the 4th Circuit has faithfully followed their instructions or found a new route around them.
Buckle up! Evidently, we’re doing this again.