D.C. Circuit Review – Reviewed: The Supreme (Administrative Law) Court

by Aaron Nielson — Friday, Sept. 7, 2018@Aaron_L_Nielson

There is a good chance that the Senate will confirm Judge Kavanaugh to the Supreme Court. If that happens, a plurality (at least*) of the Justices will be alums of the D.C. Circuit: Chief Justice Roberts, and Justices Thomas, Ginsburg, and Kavanaugh. This lopsidedness will not be unprecedented. Before his passing, Justice Scalia sat on the Supreme Court, and he also was a D.C. Circuit alum. Even so, a Supreme Court with Justice Kavanaugh will be new in an important respect: Seven of the Justices will have deep expertise in administrative law.

Count with me.

Chief Justice Roberts: The Chief Justice is a D.C. Circuit alum. By his own account, the D.C. Circuit is an admin law court. Likewise, when he was in private practice, he argued a number of significant administrative law appeals, including Freytag v. Commissioner of Internal Revenue.

Justice Thomas: He is also a D.C. Circuit alum. Before that, he headed a federal agency for almost eight years.

Justice Ginsburg: Another D.C. Circuit alum — for 13 years! She also argued Califano v. Goldfarb, which is (somewhat) related to administrative law.

Justice Breyer: Justice Breyer was not a D.C. Circuit judge. But no one doubts his “admin law” chops — especially given his past life as Professor Breyer. Indeed, his name is still on one of the leading casebooks!

Justice Kagan: She also was not a D.C. Circuit judge — but she was nominated. Professor Kagan, moreover, taught administrative law, a subject she learned both as a scholar and as a participant. She also argued important administrative law cases, including Free Enterprise Fund v. Public Company Oversight Board.

Justice Gorsuch: Not only did he clerk on the D.C. Circuit, but Justice Gorsuch made a name for himself for his writings on administrative law. There is no question that he has thought about these issues for a long time.

Justice Kavanaugh: Another D.C. Circuit alum — for 12 years! He also has spent many, many years thinking (and teaching and writing) about separation of powers. Kavanaugh is affiliated with the Administrative Conference of the United States (along with Justices Breyer and Kagan) and the American Bar Association’s Section of Administrative Law and Regulatory Practice.

The only two Justices who didn’t come to the Supreme Court as admin law experts are Justices Alito and Sotomayor — and even they weren’t novices.

Why does it matter that the Supreme Court is an administrative law court? Well, it tells us something about modern society — administrative law is often where the action is. And on a practical level, it may change the cases the Court decides to hear. As my colleague Paul Stancil has explained, when it comes to the discretionary decision whether to grant certiorari, one important factor is intensity of preference. Professor Stancil’s analysis is exhaustive (and covers a lot more than just this point), but for our purposes, here is a sufficient takeaway: “Although the boundary is admittedly blurry in places, inherent transaction costs include things like Supreme Court Justices’ relative intensity of preference — the less the Justices care about a given issue relative to other matters on their docket, the higher the transaction costs associated with granting certiorari on a case involving that issue.” No doubt, this is an oversimplification (and I can imagine counter scenarios), but it is not crazy to think that the more interest there is in administrative law across the Justices, the more administrative law cases the Court will take. If so, adding another admin law guru to the mix may lead to more cert grants on this subject.

***

The D.C. Circuit decided two cases this week.

In Ford v. Massarone, Judge Srinivasan (joined by Chief Judge Garland and Judge Griffith) created (another!) circuit split, this one about parole (if you are interested in the details of this scheme, read the opinion):

Interesting.

In Teachers College, Columbia University v. NLRB, Chief Judge Garland (joined by Judges Edwards and Silberman) upheld the Board’s determination that the College impermissibly “refus[ed] to provide information requested by a union representing the College’s secretarial and clerical employees.” The College claimed that the “union failed to demonstrate the relevance of the requested information,” but the Court concluded that “substantial evidence supports the Board’s finding that the information was relevant and that the College was obligated to provide it.” Judge Silberman concurred as follows:

Also interesting.

Who knows? Maybe a few years from now, the Piggly Wiggly Midwest doctrine may end up before the Supreme (Administrative Law) Court.

 

* Why might it be a majority? Well, if you count Justice Kagan as .5 of a D.C. Circuit judge — she was, after all, nominated to the D.C. Circuit and clerked on it — then that’s 4.5. If you then add Justice Gorsuch — who clerked on the D.C. Circuit and, as I’ve noted before, sat by designation on it — then there is more than 4.5, and thus a majority.

 

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.

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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.

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