D.C. Circuit Review – Reviewed: A Moment of Silence
The D.C. Circuit issued no opinions last week. The week of silence is fitting, for at its end, the Court lost one of its luminaries: Judge Laurence Silberman.
His career was long and his talents, many, and he dedicated both to the service of his country. Several moving tributes published in the past day review his service, and I am sure that there are many more to come. For purposes of this blog, the most relevant (and long) chapter in his storied career was his nearly thirty-seven-year tenure on the D.C. Circuit.
It would be impossible even to scratch the surface of his legal contributions during that period in this brief blog post. I will not try. The links above describe several important opinions: he wrote a powerful prelude to Justice Scalia’s famous Morrison v. Olson dissent in In re Sealed Case; he recognized an individual right to keep and bear arms in Parker v. District of Columbia (along with fellow D.C. Circuit Review—Reviewed contributor Judge Griffith); he dutifully applied precedent in a challenge to the Affordable Care Act; and he recently mounted a broadside attack against New York Times v. Sullivan.
Judge Silberman’s position on the Chevron doctrine has received less attention in writings linked above, but it seems a suitable topic for this blog. In recent years, many who share Judge Silberman’s first principles have criticized the doctrine for its shaky doctrinal foundations and the license it gives to agencies. Judge Silberman did not see it that way. He was around (on the D.C. Circuit) when the Chevron doctrine got its start, celebrated its virtue as a doctrine of judicial restraint, and continued to do so long after an early, notable proponent—Justice Scalia—began to voice doubts. Consistency alone is not always something to celebrate—there is much to be admired in “surrender[ing] former views to a better considered position”—but Judge Silberman did consider those doubts seriously, both early on and in recent writings. He ultimately concluded (contra Justice Kavanaugh) that written law is inevitably ambiguous in some respects and that the policy-making required to resolve those ambiguities is best performed by agencies rather than courts. (Emphatically not because they were more expert, but instead because they were more accountable.) He answered concerns about agency abuses by advocating a more muscular review at Step Two.
I had the privilege of having lunch with him twice when I was a law clerk. Such was his gravity that I quite embarrassed myself on the first occasion, when in answer to a question he directed my way (something innocuous about my clerkship), I froze and could find nothing at all to say. Such was his warmth and goodness that he quickly relieved me of my embarrassment. I treasure my memories of meeting him.
And here I find myself speechless once more and so must conclude what is an inadequate “review.” Judge Silberman was a man of honor. May he rest in peace.
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