D.C. Circuit Review--Reviewed: An Examination of the U.S. Court of Appeals for the District of Columbia Circuit

Abstract

The U.S. Court of Appeals for the District of Columbia Circuit is often called the second most important court in the United States. Because of the Court’s docket (administrative law), location (Washington, D.C.), and personnel (some of the most influential judges in the country, a disproportionate number of whom go on to serve on the U.S. Supreme Court), the D.C. Circuit merits close study. This is especially true in recent years. Since 2013, in the wake of the Senate’s elimination of the filibuster for judicial nominees, the D.C. Circuit has experienced a remarkable change in membership. Two members of the D.C. Circuit were nominated for the U.S. Supreme Court and one was confirmed. All the while, many separation-of-powers issues have gone through the D.C. Circuit.

This short essay (with its long appendices) is the result of five years of close study of the D.C. Circuit’s cases and operations. Based on my review of every published decision of the D.C. Circuit between August 2015 and August 2020, I offer the following thoughts about the D.C. Circuit and its relationship to the development of administrative law: (1) change takes time; (2) the D.C. Circuit is a “collegial-ish” court that is marked by consensus on most issues but also fundamental disagreements about others; (3) hard cases are essentially “built” into modern administrative law; (4) scholarship (sometimes) plays a role in the D.C. Circuit’s opinions; and (5) the D.C. Circuit has blind spots. Although this essay does not address these points in detail, it does flag them for future study.

Keywords: Administrative law, D.C. Circuit, judicial nominees, adjudication, federal courts