The Regulatory Court
The D.C. Circuit takes center stage, one more time
Aug 26, 2013, Vol. 18, No. 47 • By ADAM J. WHITE
The Supreme Court closed shop weeks ago, not to return until October. And for the third summer in a row, no Supreme Court confirmation fight occupies headlines. But in its absence, President Obama has thrust another court—often called the “second-highest” court in the land—into the spotlight.
weekly standard photo illustration / isabel kret
In June, President Obama nominated three new judges for the U.S. Court of Appeals for the D.C. Circuit, a court that the president’s supporters increasingly denounce as an obstacle to his regulatory ambitions. The D.C. Circuit is “dominated by right wing ideologues,” People for the American Way recently announced, “a major obstacle to progressive advances.” The president’s proponents hope that if he succeeds in staffing the court with enough judges of his own choosing, then he may not only preserve his regulatory agenda for the next three years, but perhaps even entrench a progressive regulatory zeitgeist in the court for years to come.
The firepower dedicated to this political battle might surprise observers unfamiliar with the D.C. Circuit’s role as the primary court for review of regulatory actions. But it would be a mistake to conclude that the D.C. Circuit’s prominence is a sudden development. In fact, the fight over the D.C. Circuit’s role today is the latest chapter in a story that dates back not merely years, but decades—to the New Deal and earlier.
Countless scholars, politicians, and lawyers have testified to the D.C. Circuit’s singular role in national government. That list includes Senator Barack Obama, who as a freshman took to the Senate floor to praise the D.C. Circuit as “a special court” (and, in turn, to denounce President Bush’s then-pending nominee to that court). But the most eloquent exponent of the D.C. Circuit’s role as a broader symbol of American liberty and self-government spoke a half-century earlier. In 1950, at the ceremony for the laying of the cornerstone of the D.C. Circuit’s modern home, President Truman placed the D.C. courts in the context not merely of contemporary law, but of the American experiment writ large:
“To our forefathers,” Truman continued, “the courts were the distinctive symbol of the kind of government—the kind of society—which they were creating in the wilderness of this continent. This new Nation was to be a democracy based on the concept of the rule of law.” And at a moment “where absolute power” was “again on the march” abroad, the American example, symbolized by the D.C. Circuit’s courthouse, would be “a challenge to the new forms of tyranny as it was to the old.”
Truman’s rhetoric did not exaggerate the unique role in American government of the D.C. Circuit, a court that exists to adjudicate fundamental questions of constitutional structure, governmental power, democratic self-government, and technocratic expertise. In Truman’s time, as in ours, to ask what kind of court should the D.C. Circuit be is to ask what kind of nation we are.
The court was itself a product of political controversy. Having lost the presidency in 1800, President John Adams and the Federalists raced to create and staff a system of federal courts that would stand as a bulwark against the threat of imminent Jeffersonian radicalism. Two weeks after the Judiciary Act of 1801 created the new federal judiciary system, and 10 days after the House finally handed the 1800 election to Jefferson, the lame-duck president signed an act to create the Circuit Court for the District of Columbia, with jurisdiction over all three of the cities then within the District of Columbia: Washington, Georgetown, and Alexandria. President Adams staffed it with staunch Federalists: James Marshall, brother of Chief Justice John Marshall, and William Cranch, his own nephew. Adams even appointed a retired Supreme Court justice to the court’s third seat, albeit one who never accepted Adams’s assignment to the lower court.
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