D.C. Circuit Review – Reviewed: Circuit Justices

by Aaron Nielson — Friday, Oct. 19, 2018@Aaron_L_Nielson

This is a quick post — I’m traveling.

Here is a little known fact about Notice & Comment. For a while, we tried to find someone to write a D.C. Circuit Review–Reviewed-style column for the Ninth Circuit, which — like the D.C. Circuit — is also home to a great deal of administrative law. Alas, it seems that other folks have better sense than I do!* That roster spot remains unfilled.

My thoughts turned to the Ninth Circuit this week as I thought about “circuit justices.” Every circuit has a justice assigned to it. The circuit justice reviews requests for extensions and motions for stays (although if a motion raises an important issue, it is almost always referred to the entire Court). The circuit justice also often attends the circuit conference, and in so doing hopefully strengthens the connection between the circuit and the Supreme Court.

As of yesterday, here is how the Justices were assigned:

As of today, here is the new list:

The big changes? Justice Kagan is now assigned the Ninth Circuit; Justice Kavanaugh is now assigned the Seventh Circuit; and Justice Sotomayor is now doing double duty as she is assigned both the Tenth Circuit and the Sixth Circuit.

This new assignment list prompts a question: Why not assign Justice Sotomayor or Justice Gorsuch to the Ninth Circuit?

When making assignments, the Supreme Court prioritizes natural connections. Thus, for instance, it is not by accident that Justice Thomas has the Eleventh Circuit, Justice Breyer has the First Circuit, and Justice Alito has the Third Circuit. Thomas and Alito are from those places, and Breyer used to be Chief Judge of the First Circuit. Nor, for the same reason, was it by accident that Justice Kennedy was assigned the Ninth Circuit; he is from California, and he also served on that court. Justice Kagan, moreover, is not from Chicago, but she did live there, so assigning her the Seventh Circuit isn’t that much of a stretch.

But there are not always natural connections. For instance, for those of us in the Tenth Circuit, our circuit justice is Justice Sotomayor. Sotomayor, to her credit, works hard to do right by the Tenth Circuit. But she isn’t from the Mountain West, nor did she serve on the Tenth Circuit. The more natural assignments would be Justice Gorsuch to the Tenth Circuit and Sotomayor to the Second Circuit. That hasn’t happened yet — presumably because Justice Ginsburg is assigned to the Second Circuit. When she retires, it is likely that Sotomayor will shift to the Second Circuit, and Gorsuch will shift to the Tenth Circuit; at it is now, he has the Eighth Circuit. Similar to Sotomayor and the Tenth Circuit, I don’t believe that Gorsuch has any natural connections to the Eighth Circuit.

So who should cover the Ninth Circuit? Justice Breyer would make sense — he’s from California. But he already has the First Circuit, and his connections to that court, as noted, are significant. In theory, he could be assigned two circuits. But the Ninth Circuit isn’t just another circuit — it is huge! Should Justice Kavanaugh handle the Ninth Circuit? Well, he did clerk there. And he knows administrative law. That said, Kavanaugh has not spent much time with immigration law, which is a significant chunk of the Ninth Circuit’s administrative law docket. Likewise, the Ninth Circuit is a pretty hefty assignment for the newest justice. Thus, it seems to me that the most logical justice for the Ninth Circuit would either be Justice Sotomayor or Justice Gorsuch. Gorsuch is from the West and served on the Tenth Circuit for a long time. This matters because half of the Ninth Circuit (Montana, Nevada, Idaho, Arizona, and Alaska) is pretty similar to the Tenth Circuit. Alternatively, the Court could have shifted Justice Sotomayor to the Ninth Circuit, allowing Justice Gorsuch to pick up the Tenth, and Justice Kavanaugh to cover the Eighth. That way, at least Gorsuch would be circuit justice in his home circuit. By contrast, I don’t see any connection between Justice Kagan and the Ninth Circuit, nor between Kavanaugh and the Seventh Circuit.

That said, perhaps I’m missing something …. Maybe I don’t yet have a good feel for the Ninth Circuit. Accordingly, in the spirit of professionalism, I’ve decided to spend today with my family doing field work in the Ninth Circuit.

Enjoy the weekend!

 

* It was a quiet week in the D.C. Circuit. The Court denied rehearing in Old Dominion Electric Coop. v. FERC, with a short explanation from Judge Katsas:

The D.C. Circuit also issued an opinion in Masias v. EPA. The opinion was penned by Judge Williams (joined by Judges Tatel and Millett) and it is a delight to read — which is saying something for a case about “National Ambient Air Quality Standards, or NAAQS.” There are three main parts of this opinion (relating to three areas: “Wyandotte County, Kansas,” “Gallia County, Ohio,” and “Colorado Springs, Colorado”). Here is an excerpt from each discussion:

Wyandotte County

Gallia County

Colorado Springs

There is more in the opinion, obviously, about each of the three places. And if you follow environmental law, I encourage you to read the opinion in full. It is both interesting law and fun to read.

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. 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. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

2 thoughts on “D.C. Circuit Review – Reviewed: Circuit Justices

  1. Marty Lederman

    Great question about assignments, Aaron. A quibble, however, about your suggestion that Gorsuch would be more representative of the Ninth Circuit than Kagan because he’s from Denver: The five states you mention–which I assume you mean are “pretty similar” to the states of the Tenth either in the sense that they’re “red” or in the sense that they have lots of big, wide open spaces (and California, Washington, Oregon and Hawaii don’t?)–are 20% of the Ninth (in terms of population), not half. And they only contain one-third of the district courts from which appeals go to the Ninth Circuit. Thus I don’t see any way in which any of the Justices is more suited than any other to be Circuit Justice for the Ninth.

    Reply
    1. Aaron Nielson Post author

      Great comment. To be clear, I wasn’t aiming for red versus blue in terms of states. I meant in terms of types of cases — e.g., lots of public lands. Arizona, Colorado, New Mexico, Nevada, and Utah, for instance, are pretty similar when it comes to mining, grazing, etc. Idaho and Wyoming also share a lot of similarities, especially S.E. Idaho and S.W. Wyoming. But you are right — the differences shouldn’t be overstated.

      Reply

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