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Could the D.C. Circuit Become the Second Most Dangerous Court?

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by Publius
Posted August 16, 2013, 12:29 PM

The Weekly Standard features long but insightful article by Adam J. White:

The Supreme Court closed shop weeks ago, not to return until October. And for the third summer in a row, no Supreme Court confirmation fight occupies headlines. But in its absence, President Obama has thrust another court—often called the “second-highest” court in the land—into the spotlight.

In June, President Obama nominated three new judges for the U.S. Court of Appeals for the D.C. Circuit, a court that the president’s supporters increasingly denounce as an obstacle to his regulatory ambitions. The D.C. Circuit is “dominated by right wing ideologues,” People for the American Way recently announced, “a major obstacle to progressive advances.” The president’s proponents hope that if he succeeds in staffing the court with enough judges of his own choosing, then he may not only preserve his regulatory agenda for the next three years, but perhaps even entrench a progressive regulatory zeitgeist in the court for years to come.

The firepower dedicated to this political battle might surprise observers unfamiliar with the D.C. Circuit’s role as the primary court for review of regulatory actions. But it would be a mistake to conclude that the D.C. Circuit’s prominence is a sudden development. In fact, the fight over the D.C. Circuit’s role today is the latest chapter in a story that dates back not merely years, but decades—to the New Deal and earlier.

Countless scholars, politicians, and lawyers have testified to the D.C. Circuit’s singular role in national government. That list includes Senator Barack Obama, who as a freshman took to the Senate floor to praise the D.C. Circuit as “a special court” (and, in turn, to denounce President Bush’s then-pending nominee to that court). But the most eloquent exponent of the D.C. Circuit’s role as a broader symbol of American liberty and self-government spoke a half-century earlier. In 1950, at the ceremony for the laying of the cornerstone of the D.C. Circuit’s modern home, President Truman placed the D.C. courts in the context not merely of contemporary law, but of the American experiment writ large:

The increasing importance of these courts is indicated by the fact that they have long since outgrown the historic old buildings that served them so long. These courts hear cases which are not only important to the private parties concerned, but which involve issues vital to the welfare and growth of the Nation. Nowhere else, outside the Supreme Court of the United States, will so many legal questions of national magnitude be decided as in this building here before us.

“To our forefathers,” Truman continued, “the courts were the distinctive symbol of the kind of government—the kind of society—which they were creating in the wilderness of this continent. This new Nation was to be a democracy based on the concept of the rule of law.” And at a moment “where absolute power” was “again on the march” abroad, the American example, symbolized by the D.C. Circuit’s courthouse, would be “a challenge to the new forms of tyranny as it was to the old.”

Truman’s rhetoric did not exaggerate the unique role in American government of the D.C. Circuit, a court that exists to adjudicate fundamental questions of constitutional structure, governmental power, democratic self-government, and technocratic expertise. In Truman’s time, as in ours, to ask what kind of court should the D.C. Circuit be is to ask what kind of nation we are.

The court was itself a product of political controversy. Having lost the presidency in 1800, President John Adams and the Federalists raced to create and staff a system of federal courts that would stand as a bulwark against the threat of imminent Jeffersonian radicalism. Two weeks after the Judiciary Act of 1801 created the new federal judiciary system, and 10 days after the House finally handed the 1800 election to Jefferson, the lame-duck president signed an act to create the Circuit Court for the District of Columbia, with jurisdiction over all three of the cities then within the District of Columbia: Washington, Georgetown, and Alexandria. President Adams staffed it with staunch Federalists: James Marshall, brother of Chief Justice John Marshall, and William Cranch, his own nephew. Adams even appointed a retired Supreme Court justice to the court’s third seat, albeit one who never accepted Adams’s assignment to the lower court.

The court did not obtain a permanent courthouse for decades; thus, as Jeffrey Brandon Morris recounts in Calmly to Poise the Scales of Justice, his bicentennial history of the court, “for a generation, when the Circuit Court sat in Washington, the judges held forth in taverns, hotels, and private homes, and, when they could, in the Capitol itself.” But the court soon had an impact far outsizing its meager setting. In 1801, Judges Marshall and Cranch ordered the district attorney to prosecute President Jefferson’s collaborator, Samuel Harrison Smith, for seditious libel arising from Smith’s criticism of Federalists in his Republican newspaper, the National Intelligencer. Just three years later, with a Republican majority in control of the bench, the court held Vice President Aaron Burr’s collaborators for trial without bail for the failed plot to invade Mexico.

In 1863, President Lincoln and the Republicans in Congress went so far as to abolish the Circuit Court altogether and replace it with a new “Supreme Court of the District of Columbia,” for unabashedly partisan reasons: Frustrated by Judge William Merrick, whose decisions “often went against the interests of the army and the Lincoln administration,” according to Morris’s history of the court, President Lincoln and the Congress terminated the old court and replaced it with a new one staffed by reliably pro-Union judges who would eventually hear critically important cases affirming the president’s wartime powers.

For the next half-century, the court would continue to change and to hear cases of national importance, such as the prosecution of President Garfield’s assassin, Charles Guiteau. But with the enactment of President Roosevelt’s New Deal, the court finally embarked on its now-familiar work at the heart of the administrative state.

The D.C. Circuit (by then known as the Court of Appeals of the District of Columbia) was the “beneficiar[y] of the enormously enhanced role of the federal government brought about by the New Deal,” according to Morris. F.D.R. himself knew this, as he urged a prospective judicial nominee that the court had “taken on a wholly new importance in the last few years,” becoming “easily the second most important Federal Court in the country.” Years later, the Second Circuit’s Judge Henry Friendly, the most prominent federal judge of the postwar era and himself an acclaimed scholar of administrative law, reflected that the D.C. Circuit had become “a court of special importance for administrative law” as a result of its jurisdiction over the Federal Communications Commission, Federal Power Commission, and other agencies. (“[D]oubtless to the delight of the other circuits,” he added.)

And the D.C. courts’ increased role in administrative law was accompanied by an increased role in defining constitutional law and supporting the separation of powers. In Youngstown Sheet & Tube Co. v. Sawyer, the district court’s Judge David Pine ordered the Truman administration to cease its takeover of the steel industry, holding that the Korean War provided no justification for the administration to seize private industry. Even if the war effort was hampered by a union strike, it “would be less injurious to the public than the injury which would flow from a timorous judicial recognition that there is some basis for this claim to unlimited and unrestrained Executive power.” To hold otherwise “would undermine public confidence in the very edifice of government as it is known under the Constitution.” (Ironically, Judge Pine’s decision, quickly affirmed by the Supreme Court in the famous Steel Seizure Case, came less than two years after Truman celebrated the D.C. Circuit as a bulwark of liberty against the backdrop of the advance of communism.)

But in the years that followed, the D.C. Circuit’s most controversial decisions were found not in its constitutional cases, or its regulatory docket, but in its continued role as the local court of appeals. Amidst the crime wave of the 1960s, Chief Judge David Bazelon and Judge J. Skelly Wright issued a series of decisions staunchly supporting and expanding the rights of criminal defendants, including the right to counsel, the inadmissibility of defendants’ incriminating statements, and increased use of the insanity defense. Judge Warren Burger was their most prominent critic, charging in one dissent that his colleagues’ eagerness to suppress confessions “now becomes an end in itself, dominating the administration of the criminal law and making law enforcement more and more difficult.” District Judge Pine, who had blocked Truman’s seizure of the steel industry, declared that the court’s liberals were on “a quest for ‘error’ in order to find grounds for reversal” of criminal convictions, creating “a climate hospitable to the belief that punishment of the guilty is far from certain and may be avoided by technicalities in the law.” Such decisions exemplified the law-and-order controversies that Richard Nixon campaigned on in 1968; after just months in office, President Nixon signed the Court Reform Act, which stripped the D.C. Circuit of its 150-year-old jurisdiction over criminal law in the District. By then, Nixon had already appointed Judge Burger to be chief justice of the United States.

Having lost its jurisdiction over local matters, the D.C. Circuit now became, above all else, a regulatory court. And that, too, promptly became a matter of persistent political controversy. Here, Judges Bazelon and Wright were again prime movers, as the court pressed strongly against regulatory agencies that the judges saw as being too lenient in their regulatory efforts. This era is perhaps best remembered for a pair of cases later known as Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council (1978). Chief Judge Bazelon’s opinions for the court substantially increased the procedural burdens on the Nuclear Regulatory Commission’s licensing of the Vermont nuclear power plant. But the Supreme Court delivered a swift and unanimous rebuke, especially to Bazelon’s conclusion that the NRC needed to further prolong the years-long review process: 

To say that the Court of Appeals’ final reason for remanding is insubstantial at best is a gross understatement. .  .  . The reports filed and reviewed literally fill books. The proceedings took years, and the actual hearings themselves over two weeks. To then nullify that effort seven years later because one report refers to other problems, which problems admittedly have been discussed at length in other reports available to the public, borders on the Kafkaesque.

The D.C. Circuit had thus accomplished the rare feat of aligning the conservative Justice William Rehnquist (who wrote for the Court) with two liberals, Justices Thurgood Marshall and William Brennan.

And in the same way that the D.C. Circuit became a major focus of the newly elected President Nixon in 1969, so it became a major focus of the newly elected President Reagan in 1981. . . .

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