Notice & Comment

The ABA Administrative Law Council as a Feeder for SCOTUS, by Ronald M. Levin

Much has been said about the wide range of experiences that Justice Ketanji Brown Jackson will bring to her new job on the Supreme Court of the United States. One that has rarely been mentioned is that she was, at the time of her nomination, a member of the Council of the ABA Section of Administrative Law and Regulatory Practice. Indeed, Justice Jackson is following in the footsteps of several other Justices who had also served on the Council:

• In 1970, William Rehnquist was elected to a three-year term on the Council, while he was an Assistant Attorney General heading the Office of Legal Counsel. Records from that era are fragmentary, but it appears that the future Justice and Chief Justice served through 1971, resigning after his nomination to the Court in early 1972.

• Antonin Scalia served on the Council from 1974-77, and later as Section Chair from 1981-82. While he was chairing the Section, he co-authored the ABA’s amicus curiae brief in INS v. Chadha, arguing that the legislative veto was unconstitutional (as the Court later held). He was confirmed to the U.S. Court of Appeals for the D.C. Circuit just after his Chair year ended, so he was Judge Scalia for most of the following year when he served as Last Retiring Chair.

• While he was a judge on the Court of Appeals for the First Circuit, Stephen Breyer served on the Council from 1989-92. In the spring of 1994, he was just about to be nominated to be Vice Chair of the Section when President Clinton announced his nomination to serve on the Supreme Court.

• At the time of his nomination to the Court, then-Judge Breyer was serving on the Council as the Section’s Liaison from the Judiciary. From 2007-12, then-Judge Brett Kavanaugh also served on the Council as Liaison from the Judiciary. So did Judge Merrick Garland (who was nominated to the Court but not confirmed) from 2000-03. And so did then-Judge Jackson from 2021 until her appointment to the Court this year.

Administrative lawyers who aspire to serve on the Supreme Court may wish to take note of this history of Council members who became Justices. It would probably be extravagant to claim that their membership on the Council, as such, gave them a strong boost toward their subsequent positions. At least, however, it is fair to say that one of the many rewards of participation in the work of the Section is that it provides an opportunity for Section members to associate with able and accomplished lawyers who share an interest in administrative law. The array of Council members who have gone on to become Justices offers a particularly apt illustration of that observation.

Ronald M. Levin is a professor at Washington University School of Law, served as Section Chair from 2000-01, and has represented the Section in the House of Delegates since 2014. This essay will appear in the next issue of the Administrative and Regulatory Law News quarterly magazine.

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