Notice & Comment

D.C. Circuit Review – Reviewed: More Dogs and Lions

Almost a year ago, I wrote a post challenging the idea that the Chief Justice does not assign important opinions to Justice Sotomayor. This week, my analysis is similar — but this time it involves Justice Thomas.

As I explained last year, here is an important principle when it comes to understanding the Supreme Court:

[S]ometimes interesting cases do not attract popular attention. And sometimes cases that do attract popular attention are not, in fact, all that interesting—especially depending on how they are resolved. In other words, it often is better to be the head of a dog than the tail of a lion; addressing interesting issues in “boring” cases can be more meaningful than addressing small issues in “major” cases.

The idea that Chief Justice Roberts does not assign important cases to Justice Sotomayor struck me as wrong. After all, he assigned her Perez v. Mortgage Bankers Association. Now Perez may not attract a lot of popular attention — it was not, for instance, a flashy constitutional decision. But it is a big deal in “admin law” circles.

This week, Jeffrey Toobin criticized Justice Thomas for not writing important opinions: “Neither Chief Justice William Rehnquist, who presided over Thomas’s first fourteen years on the Court, nor Chief Justice John G. Roberts, Jr., who has run the court for the past eleven, ever assigned Thomas a landmark opinion for the Court.”

As with Justice Sotomayor, I disagree. Indeed, I do so for two reasons. First, Toobin seems to draw the line between “landmark” and non-“landmark” based, at least in part, on whether the decision is a constitutional one. But why is that the standard? Just as Justice Sotomayor was assigned an important non-constitutional decision (Perez), Justice Thomas has also been assigned important non-constitutional decisions. Because this blog is dedicated to regulation, I’ll focus, for instance, on National Cable & Telecommunications Association v. Brand X Internet Services. Now look: Brand X is an important case–indeed, it was mentioned at least 40 (40!) times in the D.C. Circuit’s recent “net neutrality” decision. Over Justice Scalia’s fierce dissent (joined in part by Justices Ginsburg and Souter), Thomas set out important law. Brand X is a big deal too.

Second, Justice Thomas, in fact, has been tasked to write important constitutional decisions. For instance, just two terms ago, he authored Reed v. Town of Gilbert. By any measure, this is an important First Amendment case. And don’t take my word for it: “Whether viewed with disbelief, alarm or triumph, there is little question that the decision, Reed v. Town of Gilbert, marks an important shift toward treating countless laws that regulate speech with exceptional skepticism.” Indeed, the decision “transformed the First Amendment.” And just last term, in Utah v. Strieff, Thomas went “a long way toward creating an exception to the exclusionary rule for searches of persons who have outstanding warrants (which turns out to be a lot of people).” In other words, here are two major constitutional decisions from just the last two terms.

In Toobin’s defense, of course, Justice Thomas does not write as many majority decisions in the most important cases as, say, the Chief Justice or Justice Kennedy. (But in Justice Thomas’s defense, they are also both senior to him, as was Justice Scalia.) Yet the idea that he doesn’t write any such decisions strikes me as wrong.*

Anyway, it was a quiet week in the D.C. Circuit. There was just one opinion — and it involves FERC.

In Public Citizen v. FERC, petitioners (Public Citizen and the State of Connecticut) objected to FERC’s failure to prevent certain rates for auctioned power capacity from going into effect. Here, “ISO New England (‘ISO-NE) is a private, nonprofit entity that, among other things, administers New England’s energy markets.” Long story short (and simplified), some complain that ISO-NE’s rates are too high. FERC, however, deadlocked (there were only four commissioners), and so didn’t change them. When objectors sought rehearing, “[t]he Secretary issued a second Notice explaining the first Notice was not a Commission Order” because, in essence, the agency could not decide anything. Those decisions were challenged. Judge Brown, however, joined by Judges Srinivasan and Wilkins, concluded that the court lacked jurisdiction. Brown explained that what occurred here was not agency action: rather, FERC was deadlock — and so, by definition, was inactive. The Court also rejected the idea that it could compel agency action here: the statute’s “language … contains no standards cabining FERC’s discretion or enabling this Court to meaningfully review how the Commission exercises its discretion ….” (Going forward, if a commission deadlocks, check this opinion out.)

I’ll be honest; this FERC case was more interesting than I expected. Even so, although true that it “is better to be the head of a dog than the tail of a lion,” don’t forget that dogs have tails too!

* I don’t always agree with any of the Justices (and neither should you). But Justice Thomas’s opinions are not easily brushed aside. Many years ago I found myself trying to understand Section Two of the Twenty-first Amendment. (My friends thought it was funny that I knew so much about that particular amendment — I don’t even drink alcohol! How I became an expert on the importation of “intoxicating liquors” is a story I’ll save for another day.) I thought I had it all figured out. But then I read Thomas’s dissent in Granholm v. Heald. For quirky historical reasons, I think that Justice Kennedy got that case right, but boy, Thomas made a strong argument.

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