D.C. Circuit Review – Reviewed: “Breyer, Alito, and Their Pals”

by Aaron Nielson — Saturday, Mar. 25, 2017@Aaron_L_Nielson

Perhaps I’ve mentioned this before, but one of the most surprising things for me when I clerked for the Supreme Court was the fact that there is a party for the clerks every week. Each Thursday evening, the clerks from one of the chambers hosts a “happy hour” — complete with a meal — for every other clerk in the building. This weekly party (quite rightly!) is not paid for by the government; the clerks purchase and sometimes even prepare the food themselves. It can be pricey. And to top it all off, each week the hosting chambers prepares a humorous invitation for all the clerks. In other words, every nine weeks, I knew I would be hosting a fairly elaborate soiree.

Honestly, when I first learned about this tradition, I thought it was absurd. How wasteful! Never in my life had I attended a party every week, nor had I ever even wanted to. I like to work; I like to get things done; I don’t like wasting time or money on frivolities. Plus I had a family — and I wanted to see them.* The notion that busy people would burn their time and money this way struck me as beyond silly.

But then I came to understand the purpose of this “silly” tradition. Life at the Supreme Court can be peculiar — it is both insular (you can’t speak with anyone outside the building about what is happening) and stressful (the cases are important). So this particular tradition was developed. And here’s the charm of it. At the start of the Term, clerks get to know each other. Everyone is busy even then, sure, but there isn’t that much work. So what happens? The clerks become friends. The Roberts clerks become friends with the Kagan clerks. The Ginsburg clerks become friends with the Thomas clerks. The Alito clerks become friends with the Sotomayor clerks. This is not because everyone magically starts agreeing about everything. But clerks see each other as human beings.

Fast forward a few months. As things get busier and the amount of tension in the building increases, these happy hours serve as weekly reminders that, in fact, everyone still likes each other. No doubt, clerks continue to disagree — just like the Justices sometimes disagree. But the clerks disagree as colleagues, not enemies.

And then comes the true genius of the happy hour. At the end of the Term, when everyone is working long hours (sometimes, really long hours), the clerks remain on good terms. Everyone is able to work together. The fact that every week, without fail, the clerks meet together in a social setting helps them get the job done at the end of the year when everyone is tired, stressed, and a little cranky. And when the Term ends, each clerk has a lot more friends.

Through this experience, I learned an important lesson about Chesterton’s fence:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

At first, I didn’t understand the purpose of a weekly party. Only after the year was over did I see the wisdom of it.

Earlier this week, I saw a funny answer on Jeopardy that reminded me of my year clerking: “This acronym precedes ‘blog’ in the name of Tom Goldstein’s blog on the work of Breyer, Alito & their pals.”

Jeopardy scotusblog

This answer made me smile because, in fact, Justices Breyer and Alito are pals! Just as the Breyer clerks are friends with the Alito clerks, the Justices are also friends. Breyer and Alito do not always agree, though they agree a fair bit. But the disagreement, when it exists, is intellectual; it is not personal. All the Justices try hard to not let intellectual disagreement — which is inevitable, especially for difficult cases — turn into animosity. They do this by working at it, for instance by meeting together to share meals and celebrate birthdays. They also just talk to each other. In other words, they strive to be able to “disagree without being disagreeable.” The great Scalia/Breyer debates of yore are an example. And when Judge Gorsuch wisely says “there’s no such thing as a Republican judge or a Democratic judge, we just have judges,” this dynamic is what I think he means. Of course, in hard cases, judges disagree about the correct interpretative methodology. Judges not should compromise their independent judgment just to get along. But judges should never let partisanship or disdain taint their analysis; decisions should be principled. Disagreement, in other words, cannot always be avoided, but that does not mean that there must be factionalism.

The D.C. Circuit has a similar dynamic. The judges try to get along. Sure, they don’t always succeed, but they do pretty well. This week’s cases are a good example.

Consider Livnat v. Palestinian Authority. This is a truly awful case; it makes me shudder. Here is how Judge Griffith, joined by Judges Wilkins and Silberman, opens his opinion:

In 2011, Jewish worshippers were shot by armed gunmen at Joseph’s Tomb, a holy site in the West Bank believed by many to be the burial place of the biblical patriarch. Among the victims were Ben-Yosef Livnat, who was killed, and U.S. citizens Yitzhak Safra and Natan Safra, who were wounded in the gunfire. The Livnat and Safra families brought suit in federal district court seeking to hold the Palestinian Authority vicariously liable for the attack. For the reasons set forth below, we conclude that the suits may not be brought in the courts of the United States.

This is a not a pleasant opinion to read — nor, I am sure, was it a pleasant case for the panel to decide or for Judge Griffith to author. But three very different judges came together to find common ground. Perhaps other judges might disagree, but this is a good faith decision in a case with very hard facts.

Next, we have two NLRB opinions: Banner Health System v. NLRB (per Judge Pillard, joined by Judges Edwards and Silberman) and Stewart v. NLRB (per Judge Srinivasan, joined by Judge Wilkins). In Banner Health, the panel reviewed “whether an employer’s effort to keep certain information confidential ran afoul of its employees’ established rights under federal labor law to share employment-related information with one another in an effort to improve their lot.” The Court upheld the Board’s decision in part (the company’s Confidentiality Agreement was invalid) but had questions about aspects of the analysis: “because the record lacks substantial evidence that Banner actually maintained a categorical investigative nondisclosure policy, we grant the petition for review and deny enforcement as to that portion of the Board’s Order.”

And in Stewart, the panel remanded for additional analysis regarding “a checkoff arrangement” in which “an employee authorizes her employer to deduct union dues from her paycheck and remit the dues directly to the union on her behalf.” The panel concluded that the Board did not adequately explain why it treated this case the same as other cases, even though the facts were materially different. Specifically, “a group of employees, during the period between the expiration of the operative collective bargaining agreement and the commencement of a new one, resigned from their union and sought to revoke their dues-checkoff authorizations. The company, however, continued to deduct union dues from the employees’ wages, and the union continued to accept the payments.” Was that okay? The Board said yes but did not consider the fact that unlike past cases, here “employees generally lacked any revocation opportunity associated with the contract’s expiration.” Judge Silberman would have resolved the case on broader grounds: the employees have a statutory right to opt-out. As he put it:

That brings me to the merits of the statutory interpretation question, and I do not regard it as difficult. The Board adopts an anti-textual interpretation of the phrase, “beyond the termination.” It essentially claims that “beyond” can mean “before”; if an employee’s authorization card conferred a window period in which to revoke authorization before the termination date and he or she does not revoke, he or she has forfeited the right after termination of the contract. In this case, that means petitioners who sought to revoke their authorization during the hiatus period after termination of the applicable agreement in October 2008 were not entitled to revoke, and therefore Fry’s and Local 99 did not commit an unfair labor practice by refusing to accept revocations submitted during that period. I think the Board’s interpretation of section 302 is flatly wrong, as have other courts that have considered the issue. The Board has engaged in a blatant attempt to rewrite a statute in which Congress spoke plainly – at least on the crucial issue.

This entire case is interesting; check out Judge Silberman’s discussion of Chevron. But for purposes here, the disagreement, over all, is pretty respectful. Sure, Silberman accuses the majority of “purporting to discover an ambiguity in the Board’s opinion that none of the parties perceived, and I do not believe exists, thereby justifying a remand.” But I think it is safe to say that everyone will still be friends come lunchtime.

Finally, we have National Association of Regulatory Utility Commissioners v. FCC. In this per curiam opinion (Chief Judge Garland, and Judges Henderson and Rogers), the panel rejected a challenge to “the Order of the Federal Communications Commission authorizing interconnected Voice-over-Internet-Protocol service providers (‘I-VoIPs’) to obtain North American Numbering Plan telephone numbers directly from the Numbering Administrators rather than through intermediary local phone service numbering partners.” The panel concluded the petitioner had not established standing: “Although NARUC bears the ‘burden of proof . . . to show a substantial probability that it has been injured,’ NARUC does not address standing in its opening brief beyond a single sentence, asserting without elaboration that ‘the Order undermines its members’ authority directly and indirectly.’ Pet’r’s Br. 17. In its Reply Brief, NARUC states standing is ‘evident’ from its opening brief, Reply Br. 12, because the Order ‘impacted’ state commissions’ ability to carry out ‘tasks central to a federal scheme.'” The panel disagreed that standing was “self-evident.”

So that’s the week. The takeaway? Remember “Breyer, Alito, and Their Pals.”

* When the Alito chambers hosted, we invited families. Some of the other chambers did too. It was fun to watch all the “clerk kids” play together.

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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