D.C. Circuit Review – Reviewed: The Use of Philosophers by the D.C. Circuit

by Aaron Nielson — Saturday, Jan. 26, 2019@Aaron_L_Nielson

This week President Trump officially nominated (again) Neomi Rao to the D.C. Circuit. That isn’t surprising. The Court is home to a fair number of law professors and prominent government officials. Rao, of course, is both. The Court decided just a couple of cases this week.* So why not spend a few minutes on Rao? (In the interest of full disclosure, as I’ve noted before, I’m not impartial. Rao was my supervisor. She was a great boss.)

Much of Professor Rao’s scholarship focuses on administrative law — which no doubt will be discussed during her confirmation hearing. That scholarship, for what it is worth, is “well regarded” by folks from different ideological perspectives. As a law student, however, she published an interesting article about something very different: philosophers. Here at Notice & Comment, we like to help students find note ideas. In that spirit, I thought it would be fun to revisit her student note, A Backdoor to Policy Making: The Use of Philosophers by the Supreme Court.

Out the outset, however, I confess that this is not my specialty. For good or ill (and probably both), I am much more likely to open a book by Elizabeth Gaskell or P.G. Wodehouse than John Stuart Mill or Friedrich Nietzsche. And by more likely, I mean orders upon orders of magnitude more likely. To be sure, as an undergraduate, I read my share of political philosophers. And Fyodor Dostoevsky, I suppose, is a philosopher (or sorts), and The Brothers Karamazov is remarkable. Even so, philosophy is not my forte.

It appears, however, that Rao is knowledgeable about philosophy. As a law student, she took that knowledge and applied it to law. Here is the conclusion of her article:

Now, no doubt, some folks will disagree about her conclusion. That’s par for the course. It also isn’t what I want to talk about. Instead, I want to discuss her empirical results. In particular, she did a search for a bunch of philosophers to see how and whether the Supreme Court cited them. Here is her list of philosophers:

And here are some of her results:

Interesting!

For this week’s post, I asked my (very able) research assistant to look for citations to philosophers in the D.C. Circuit. Here are some fun examples.

First, a recent one:

Second, a Dworkin appearance — about vacatur!

Third, Burke makes an appearance too:

Fourth, Aristotle:

And fifth, Socrates and Plato:

By the way, if you are wondering who the most cited philosopher is in the D.C. Circuit, he went by the name Charles-Louis de Secondat, Baron de La Brède et de Montesquieu.

 

* That said, the cases were interesting. Hoopa Valley Tribe v. FERC is my favorite this week because I’m not a FOIA expert. But trust me, both are well worth your time.

In Hoopa Valley Tribe, Judge Sentelle (joined by Judges Griffith and Pillard) began his opinion this way:

As I understand it, if some activity may result in discharges into navigable waters, the power company must seek a water quality certificate from the relevant States. Those States must act promptly — they can’t take more than a year (and even that may be too long). Here, for complicated reasons involving settlement discussions and decommissioning some dams while recommissioning others, that did not happen. Instead, there was a series of requests over a decade, each of which was withdrawn. Does that approach effectively toll the deadline? No, says the Court: “This case presents the set of facts in which a licensee entered a written agreement with the reviewing states to delay water quality certification. PacifiCorp’s withdrawals-and-resubmissions were not just similar requests, they were not new requests at all.”

There are a few noteworthy things about this opinion. First, now-Senator Kamala Harris filed an brief as Attorney General of California, so we know that this case has taken a good while to resolve (hence a case number that begins with a 14-). Second, the Court liberally uses italics throughout — more so than usual. Candidly, I approve; I use italics for emphasis too. And third, there is a fascinating discussion of sovereign immunity. Oregon and California have not waived their 11th Amendment immunity; does that matter? No again, says the Court:

In Judicial Watch, Inc. v. Department of Defense, Judge Rogers (joined by Judges Srinivasan and Ginsburg) opened her opinion this way:

This opinion is also interesting. Beyond the military action itself, this opinion also addresses a speech given at Harvard! Judicial Watch argued that the presidential communications privilege should not apply because “the government makes no claim that the authors of the memoranda briefed the President or his senior advisers directly, or even that they were the intended recipients of the memoranda or reviewed the memoranda. Judicial Watch understands the government only to claim that the memoranda ‘memorialize’ the analysis and advice briefed, thereby implying they were prepared after the briefing.” The Court didn’t buy it: “to determine the applicability of the presidential communications privilege, the government’s declarations did not need to be more specific about who gave the briefings or how those conducting the briefings obtained the analysis and advice they conveyed, or the relationship of the briefer to the authors, the President, and the President’s senior advisers, or whether and how the results of the briefings were later conveyed to the authors of the memoranda.”

 

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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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