The Magazine

The Regulatory Court

The D.C. Circuit takes center stage, one more time

Aug 26, 2013, Vol. 18, No. 47 • By ADAM J. WHITE
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The court did not obtain a permanent courthouse for decades; thus, as Jeffrey Brandon Morris recounts in Calmly to Poise the Scales of Justice, his bicentennial history of the court, “for a generation, when the Circuit Court sat in Washington, the judges held forth in taverns, hotels, and private homes, and, when they could, in the Capitol itself.” But the court soon had an impact far outsizing its meager setting. In 1801, Judges Marshall and Cranch ordered the district attorney to prosecute President Jefferson’s collaborator, Samuel Harrison Smith, for seditious libel arising from Smith’s criticism of Federalists in his Republican newspaper, the National Intelligencer. Just three years later, with a Republican majority in control of the bench, the court held Vice President Aaron Burr’s collaborators for trial without bail for the failed plot to invade Mexico.

In 1863, President Lincoln and the Republicans in Congress went so far as to abolish the Circuit Court altogether and replace it with a new “Supreme Court of the District of Columbia,” for unabashedly partisan reasons: Frustrated by Judge William Merrick, whose decisions “often went against the interests of the army and the Lincoln administration,” according to Morris’s history of the court, President Lincoln and the Congress terminated the old court and replaced it with a new one staffed by reliably pro-Union judges who would eventually hear critically important cases affirming the president’s wartime powers.

For the next half-century, the court would continue to change and to hear cases of national importance, such as the prosecution of President Garfield’s assassin, Charles Guiteau. But with the enactment of President Roosevelt’s New Deal, the court finally embarked on its now-familiar work at the heart of the administrative state. 

The D.C. Circuit (by then known as the Court of Appeals of the District of Columbia) was the “beneficiar[y] of the enormously enhanced role of the federal government brought about by the New Deal,” according to Morris. F.D.R. himself knew this, as he urged a prospective judicial nominee that the court had “taken on a wholly new importance in the last few years,” becoming “easily the second most important Federal Court in the country.” Years later, the Second Circuit’s Judge Henry Friendly, the most prominent federal judge of the postwar era and himself an acclaimed scholar of administrative law, reflected that the D.C. Circuit had become “a court of special importance for administrative law” as a result of its jurisdiction over the Federal Communications Commission, Federal Power Commission, and other agencies. (“[D]oubtless to the delight of the other circuits,” he added.)

And the D.C. courts’ increased role in administrative law was accompanied by an increased role in defining constitutional law and supporting the separation of powers. In Youngstown Sheet & Tube Co. v. Sawyer, the district court’s Judge David Pine ordered the Truman administration to cease its takeover of the steel industry, holding that the Korean War provided no justification for the administration to seize private industry. Even if the war effort was hampered by a union strike, it “would be less injurious to the public than the injury which would flow from a timorous judicial recognition that there is some basis for this claim to unlimited and unrestrained Executive power.” To hold otherwise “would undermine public confidence in the very edifice of government as it is known under the Constitution.” (Ironically, Judge Pine’s decision, quickly affirmed by the Supreme Court in the famous Steel Seizure Case, came less than two years after Truman celebrated the D.C. Circuit as a bulwark of liberty against the backdrop of the advance of communism.)

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