Notice & Comment

D.C. Circuit Review – Reviewed: The Takeover is Almost Complete

As of yesterday, Judge Ketanji Brown Jackson will soon officially be Justice Ketanji Brown Jackson. There will also soon be another vacancy on the D.C. Circuit (and presumably on the ABA Admin Law Council). This is big news that almost certainly will have implications for decades.

As the nation reacts to this development, here’s something related to think about:

Today, in the Deseret News (a Utah newspaper), Alan Hurst has more thoughts on this development:

So, what does it say that the D.C. Circuit has become the Supreme Court’s feeder team? It says that reviewing agencies’ actions is the most important thing the federal courts do today. That, in turn, suggests that agency action itself is the most important part of the federal government.


If you think agency lawmaking is a good thing, then you want your best judges on the D.C. Circuit because you want it done right — you want top legal talent to be reviewing agency decisions and making sure the system works. If you think agency lawmaking is a bad thing, then you still want your best judges on the D.C. Circuit, because that’s where they have the most opportunity to rebuke overactive agencies and push power back toward Congress. And if both sides are putting their most promising judges on the D.C. Circuit, then it should surprise no one that both sides look to the D.C. Circuit when it’s time to appoint a justice.

The importance of the administrative state likely plays a role in the increasing prominence of the D.C. Circuit. But there are factors, too. Proximity to decision-makers presumably matters, as does the fact that the pool of potential nominees to the D.C. Circuit is nationwide. Beyond that, there may be a perpetual motion machine at work; as the D.C. Circuit becomes recognized as a launching pad, more folks with Supreme Court aspirations want to be on the D.C. Circuit, thus leading to more D.C. Circuit judges going to the Supreme Court, thus leading to even more folks with Supreme Court aspirations looking to the D.C. Circuit. Eventually, it may just be easiest for presidents to look to the D.C. Circuit. Under this theory, it doesn’t matter why the the D.C. Circuit is a launching pad — just that it is.

We should also ask whether it is a good thing that the D.C. Circuit has such an outsized influence on the Supreme Court. The D.C. Circuit is impressive, but it has blind spots. I clerked on both the Fifth Circuit and the D.C. Circuit, and the types of cases they hear — and how they hear them — are not the same.* More broadly, the judges and clerks of the D.C. Circuit also run in the same social circles — not even just the same types of social circles — as the justices and clerks of the Supreme Court.

In all events, the takeover is almost complete.

* A common view is that the D.C. Circuit’s cases are more complex. Maybe. Consider Weng v. Walsh. This opinion — authored by Judge Edwards, who was joined by Chief Judge Srinivasan and Judge Tatel — concerns the scope of a settlement agreement’s release in the context of alleged anti-discrimination. This case isn’t more complicated than what other circuits do. Furthermore, St. Helena Clear Lake Hospital v. Becerra may be more specialized than what some courts typically get (though all federal appellate courts decide a fair number of administrative law cases), but the analysis isn’t more complicated. Here, Judge Silberman — joined by Judges Wilkins and Katsas — held that “a small California hospital” is not entitled to “be compensated under Medicare for the cost of keeping various specialty doctors on call.” If you are involved in “critical access hospitals” in rural areas, you should read this opinion in full, which touches on, among other things, what services a hospital must provide. Be warned, however. This appears to be a messy subject and even after reading the opinion several times, I’m not sure how California law works or what category of deference fits best.

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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