Notice & Comment

D.C. Circuit Review – Reviewed: “Whatever is is right”

Here is one of Judge Randolph’s favorite lines:

A motion to [the court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.

I know it is one of his favorite lines because he has invoked it numerous times.* And for good reason. That would be a pretty great sentence even if it wasn’t from the pen of Chief Justice Marshall.

This week, we learned another of Judge Randolph’s favorite lines:

“‘Whatever is is right’; an aphorism that would be as final as it is lazy, did it not include the troublesome consequence, that nothing that ever was, was wrong.”

Judge Randolph used this quote — from Charles Dickens — in an opinion this week, and it was the second time that I’ve seen him use it since I started writing D.C. Circuit Review — Reviewed in 2015. That’s also a great line. Here is the full context (which makes it even better):

They hanged at Tyburn, in those days, so the street outside Newgate had not obtained one infamous notoriety that has since attached to it. But, the gaol was a vile place, in which most kinds of debauchery and villainy were practised, and where dire diseases were bred, that came into court with the prisoners, and sometimes rushed straight from the dock at my Lord Chief Justice himself, and pulled him off the bench. It had more than once happened, that the Judge in the black cap pronounced his own doom as certainly as the prisoner’s, and even died before him. For the rest, the Old Bailey was famous as a kind of deadly inn-yard, from which pale travellers set out continually, in carts and coaches, on a violent passage into the other world: traversing some two miles and a half of public street and road, and shaming few good citizens, if any. So powerful is use, and so desirable to be good use in the beginning. It was famous, too, for the pillory, a wise old institution, that inflicted a punishment of which no one could foresee the extent; also, for the whipping-post, another dear old institution, very humanising and softening to behold in action; also, for extensive transactions in blood-money, another fragment of ancestral wisdom, systematically leading to the most frightful mercenary crimes that could be committed under Heaven. Altogether, the Old Bailey, at that date, was a choice illustration of the precept, that “Whatever is is right;” an aphorism that would be as final as it is lazy, did it not include the troublesome consequence, that nothing that ever was, was wrong.

As regular readers know, I confess that I sometimes have Burkean sympathies. And that quote, I suppose, could be read as a jab of sorts at Burke. But not really. Burke recognized the importance of change — indeed, “[a] state without the means of some change is without the means of its conservation. Without such means, it might even risk the loss of that part of the Constitution which it wished the most religiously to preserve.” He was just careful about it.

As far as I can tell, Judge Randolph is the only judge (at least in the United State — I haven’t checked abroad) to use that quote in opinions. Why did he mention it? To respond to a formidable string cite.

In Kornitzky Group, LLC v. Elwell, a panel of the Court (Judges Srinivasan and Edwards) rejected a motion by the FAA to stay oral argument because of the shutdown. Judge Randolph dissented. Srinivasan and Edwards included this potent paragraph in their concurrence explaining the order:

To which Judge Randolph responded:

I’m not going to spoil the details of the disagreement. Read the opinions. They are quite short. And they may even merit a student note ….


The Court issued one [heavily redacted] opinion that has received a fair bit of attention elsewhere.

In particular, in In re Grand Jury Subpoena, the panel (Judges Tatel, Griffith, Williams) released a December 18 order upholding the district court’s order holding “the Corporation” (which is owned by “Country A”) in contempt for not complying with a grand jury subpoena. The Corporation was not immune under the Foreign Sovereign Immunities Act, nor was the subpoena “unreasonable or oppressive.” Notably, the Court rejected the argument that the subpoena would require the Corporation to violate Country A’s domestic law because the Corporation’s declarations about the foreign law were cursory, devoid of citations to case law, and prepared in anticipation of this case. Judge Williams wrote separately to emphasize that the government’s view of jurisdiction was very broad:

That said, Judge Williams concurred because the Corporation did not object. In other words, Williams recognized that the new precedent might apply, but he also acknowledged the law of forfeiture. New and old together; perhaps both Dickens and Burke would approve.

* He isn’t the only one, of course. Chief Justice Roberts used the line in his first opinion on the Supreme Court:

The fact that an award of fees under § 1447(c) is left to the district court’s discretion, with no heavy congressional thumb on either side of the scales, does not mean that no legal standard governs that discretion. We have it on good authority that “a motion to [a court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.). Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike. See Friendly, Indiscretion About Discretion, 31 Emory L. J. 747, 758 (1982).

On the subject of first opinions, Justice Kavanaugh’s (first) opinion for the Court this week is well done. My favorite sentence? “Not always.”

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