D.C. Circuit Review – Reviewed: The Second Most Important Court?

by Aaron Nielson — Friday, Sept. 4, 2015@Aaron_L_Nielson

Conventional wisdom proclaims the D.C. Circuit to be “ the second most important court .” (Sometimes it’s even called “the second most powerful court.”) The Washington Post says it; the New York Times says it; even media outlets halfway around the world say it. But is it true? There is a good argument that the California Supreme Court is the second most important court in the United States. After all, most law is state law, and California—whose economy is large enough, by itself, to be admitted into the G8—often creates de facto national standards. The Delaware courts too have a claim to the title: economic growth matters a lot, which means corporations matter, which means Delawarematters. The Texas Supreme Court (oil) and the Second Circuit (finance)—or the Fifth Circuit or the Southern District of New York—are also in the running, for similar reasons. Arguments can be made for other courts too. Yet somehow, despite all that, the D.C. Circuit wears the crown.

The conventional wisdom, however, has been challenged. In a criminal case , the D.C. Circuit (per Judge Pillard, joined by Judge Rogers) has opened up what Judge Henderson, in dissent, calls “ a direct circuit split ” regarding the exclusionary rule and knock-and-announce searches. (Judge Henderson, by the way, has been dissenting a lot lately.) I’ll leave the merits of the crim pro question to others. What I want to flag is Orin Kerr’s response to the circuit split. He asks whether the Supreme Court really cares “about 4A splits with CADC, as its just one city?” Those are fighting words. If the D.C. Circuit’s views can be brushed aside in criminal cases, can it really be the nation’s second most important court?

Now is the perfect time to weigh the D.C. Circuit’s claim to its familiar title—especially because the court’s opinion page this week is light on pure “admin law” opinions. (By light I mean it has none.) In fact, the court released just four opinions . And one is about attorneys’ fees. With fewer opinions to review, I’ll take a stab at the big question: is the D.C. Circuit really all that important?

For good or ill, the conventional wisdom is probably right. Here’s why.

First, even though this week is not a big one for agency decisions, administrative law—and so the D.C. Circuit—is the battleground for many (most?) of the central policy disputes in the United States. Don’t take my word for it: “ Whether the subject [is] health care, welfare reform, tobacco, or guns ,” presidents look to the administrative state to push policy priorities. You can add the environment to that list too, along with consumer protection and voting issues, plus the internet . Though othercourts also confront administrative law cases, there is no denying the D.C. Circuit’s outsized role, especially given the statutes that provide for exclusive D.C. Circuit jurisdiction . In an era of “administrative law as blood sport,” the D.C. Circuit sees more than its share of carnage. (Query whether the D.C. Circuit should have exclusive jurisdiction so often. But that’s a question for another day.) This reality is reason enough for the D.C. Circuit’s reputation.

Second, even beyond administrative law, the D.C. Circuit’s cases are interesting—often unusually so.* Consider United States v. Straker / Clarke v. Lynch. It’s a lengthy opinion about the “Hostage Taking Act.” I’ve never heard of this law before, but doesn’t international kidnapping always catch one’s attention? A per curiam panel of Judges Tatel, Millett, and Pillard tackled questions like “does that statute apply if, as defendants allege, the victim secured his United States citizenship through fraud?” and was the district court right to deny a “petition for a writ of mandamus requiring the United States Attorney to initiate posthumous denaturalization proceedings against Maharaj?” Every week cases like this pop up on the D.C. Circuit’s docket. You can learn a lot of law, and about the world, from this court.

Third, the D.C. Circuit overflows with talent. The same can (and should) be said of others courts, but, boy, it is true for the D.C. Circuit. Consider Shelby County v. Lynch, the attorneys’ fees case. Most attorneys’ fees fights are, frankly, rather dry, even if they are important . But not this one. Shelby County, victor in the Supreme Court’s latest Voting Rights Act case, sought over $2 million in attorneys’ fees and costs from Judges Tatel, Griffith, and Silberman. It got zilch. Each judge wrote an opinion, and all made interesting points. I don’t know enough to say who has it right—though Judge Silberman asks a good hypothetical (“Suppose a new Congress were to pass a version of the Voting Rights Act that was discriminatory to African-American voters. If you sued and prevailed on grounds that the new statute violated both the ‘right to vote’ under the Fifteenth Amendment (which protects against interference by both the states and the United States), as well as the right to vote pursuant to the equal protection clause of the Fourteenth Amendment, would you be entitled to attorney’s fees under the Voting Rights Act?”). But I do know that these are thoughtful, serious opinions. To a judge, the D.C. Circuit bench is strong.

Fourth, the D.C. Circuit is bold. Boldness, of course, is not always a virtue . But it is nice to watch smart judges think through hard problems and then defend their conclusions. To be sure, this intellectual aggressiveness has problems of its own. The court, for one, can be too academic (and I say that as an academic!). But smart judges addressing difficult issues makes for an important court.

Given all of that, I think the conventional wisdom that the D.C. Circuit is the nation’s second most important court is probably right, considering the realities of the modern administrative state. We live in an age of admin law.

(Why, you ask, do I say that the conventional wisdom is only “probably” right? Because maybe we should drop the word “second.”)

* To be fair, the D.C. Circuit’s cases can also be unusually uninteresting, at least to those who don’tappreciate the nuances of power grids. But that’s why we all owe a debt of gratitude to the great Judge Stephen F. Williams, a giant of administrative law, who, thankfully, happens to “ loves FERC cases .”

This entry was categorized in D.C. Circuit Review and tagged .

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 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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