With the Supreme Court term about to begin many eyes will be on a small handful of cases. The interest in these cases generally surrounds certain salient case issues. In this respect this term has a lot to offer. The Court will review the federal government’s Deferred Action for Childhood Arrivals (DACA) policy. It will look at the constitutionality of health care mandates from the Affordable Care Act. It will even examine a New York law dealing with transporting a licensed firearm under the Second Amendment. The Court has granted a total of 51 cases to review in the upcoming 2019 term. Of these cases only one, Opati v. Sudan was decided below by the D.C. Circuit (Trump v. NAACP was also heard in D.C. but by the District Court for D.C. rather than the Court of Appeals.), the Court of Appeals where more Supreme Court Justices got their start than any other. This circuit has been acknowledged as special and unique (this article is behind a paywall) by none other than the Supreme Court’s Chief Justice John Roberts. But what makes it unique, who are the judges that sit on the Court, and what is their relationship to the Supreme Court? These questions and others will be analyzed below looking at data (partially derived from the Supreme Court Database) from cases decided between the 1986 Supreme Court Term when Rehnquist was elevated to Chief Justice and the most recent 2018 Term.
The D.C. Circuit isn’t the largest federal circuit by a long shot. According to the statistics from the Office of the U.S. Courts, the D.C. Circuit actually heard the fewest cases of any of the federal courts of appeals this past year (statistics for the Federal Circuit Court of Appeals is listed separately from those of the other circuits). It also had the fewest cases per judge of any circuit, with each judge averaging 44 written decisions. This is compared to 232 written decisions per judge for 11th circuit judges. Even though it decides the fewest cases of the circuits, the Supreme Court granted more petitions for cert from cases from the D.C. Circuit since 1986 than it did from three of the other circuits.
The Supreme Court heard nearly twice as many cases from the D.C. Circuit than from First Circuit during this period but only about a fifth of the number of cases as it heard from the Ninth Circuit (as a point of reference, the Ninth Circuit decided nearly ten times as many cases as the D.C. Circuit this past year).
One area where the D.C. Circuit is unique is in Supreme Court reversals. D.C. Circuit decisions have been reversed the second least frequently of decisions from any circuit over this period.
At 52% the D.C. Circuit was reversed less frequently than all other circuits except for the First Circuit which was reversed 49% of the time. The Supreme Court reversed 64.4% of its total decisions for this period which is 12% higher than that for the D.C. Circuit. Five circuits averaged higher reversal rates for this period than this average with the Ninth Circuit’s 75.5% running the highest.
The D.C. Circuit hears a unique set of cases that make their way to the Supreme Court. According to the Supreme Court Database’s coding for issue area, cases from the D.C. Circuit that eventually make their way to the Supreme Court are much more frequent in certain common areas.
The percentages show the rate of cases within each circuit and the red lines mark the average frequency of each case area across circuits. The D.C. Circuit had well below the average rate of civil rights and criminal procedure cases for this period compared with rates from other circuits. It had just about the average frequency for First Amendment cases. The D.C. Circuit had a higher frequency of judicial power cases, however, with cases in this area composing over 5% more of its Supreme Court caseload than those from any of the other circuits.
One major distinction between the D.C. Circuit and other courts of appeals lies within the frequency with which it hears cases originating from actions of federal agencies. As the federal appeals court based in D.C., the D.C. Circuit hears the bulk of such cases due to its geographic location and statutes that grant the Circuit appellate jurisdiction in such matters. The D.C. Circuit’s experience with such cases is apparent when comparing Supreme Court cases by circuits that originated in agency actions. The figure below shows the fraction of cases per circuit since 1986 that originated in agency actions.
Aside from the Ninth Circuit, the D.C. Circuit ruled on more cases starting with agency actions than any other federal court of appeal and at 48% of the D.C. Circuit’s Supreme Court Court’s caseload, this is almost 10% more of the Supreme Court’s docket from that circuit than from any other circuit (and an over 25% greater percentage of its Supreme Court caseload than that from the Ninth Circuit).
In contrast to the Supreme Court’s relatively low reversal rate of decisions from the D.C. Circuit, the D.C. Circuit reverses a relatively high number of agency decisions. The D.C. Circuit’s decisions from agency actions that later led to Supreme Court cases are displayed below.
Of the cases the Supreme Court heard during this period, only six were based on cases where the D.C. Circuit affirmed an agency’s decision. Within this set of cases, 20 agency decisions were overturned and three more were vacated. While more EPA decisions led to this set of cases than decisions from other agencies, these cases came from a diverse set of agencies without any one of them dominating the mix in either affirmances or reversals.
More current and recent Supreme Court Justices previously practiced in the D.C. Circuit than in any other court. Four of the nine current justices on the Court were previously D.C. Circuit Judges. The following table shows the judges on D.C. Circuit from 1986 with decisions that led to Supreme Court cases, those who currently sit on the D.C. Circuit, or who currently sit on the Supreme Court and were elevated from the D.C. Circuit, along with their current status, and their appointing president. Current and past Supreme Court Justices are enclosed in green.
When we look at D.C. Circuit judges whose majority opinions were later reviewed by the Supreme Court, Judges Silberman and Randolph were tied with the most with 11 apiece.
Outcomes coded as “neither” were judgments affirming and reversing in part or other decision types that did not clearly identify an outcome favoring one side. Randolph was also the judge reversed most often by the Supreme Court with seven of his decisions leading to reversals. Judge Silberman had the most affirmed opinions with six. Looking at the current Supreme Court Justices, RBG had both of her decisions leading to Supreme Court cases affirmed by the Court, Kavanaugh had two of his decisions reversed and one affirmed, and Roberts had his only decision leading to a Supreme Court case affirmed.
Not only are majority opinions telling when looking at lower court judges’ relationships to the Supreme Court but so are dissents. Dissents in cases that are later taken up by the Supreme Court may indicate that that justices took heed of the dissenters positions at the cert stage. The next figure shows the number of dissents from D.C. Circuit Judges in cases that the Supreme Court later decided.
Judges Sentelle and Wald led these judges with seven dissents each in cases that the Supreme Court later adjudicated. Kavanaugh had the most dissents of current Supreme Court Justices in cases later heard by the Supreme Court with three.
Another way to break these relationships down is by majority/dissent judge pairs in cases the Supreme Court later took up on cert. Of the judge pairs, only three had more than one case that the Supreme Court later decided. “PC” cases are per curiam decisions where no D.C. Circuit Judge was listed as a majority author.
These three pairs of judges are Randolph as majority author with Sentelle in dissent. Silberman as majority author with RBG in dissent, and Sentelle as majority author with Tatel in dissent. Of these three pairs, only one, Randolph and Sentelle were judges appointed by presidents of the same party (Republicans).
Supreme Court Justices are the ultimate arbiters in this set of cases. The last figure shows how often specific justices wrote majority opinions in this set of cases and how they ruled on the D.C. Circuit’s decisions.
Scalia wrote majority decisions in more of these cases than any other Supreme Court Justice with 16. He affirmed 50% of them and only reversed 37.5%. Of the justices that wrote majority opinions in at least eight cases coming from the D.C. Circuit only Breyer and Thomas had higher affirmance rates than Scalia. Judges with high reversal rates of D.C. Circuit decisions with more than three total decisions in this set include Ginsburg at 62.5% and Roberts at 66.67%.
The D.C. Circuit hears many cases garnering a great deal of attention. Between these attention grabbing cases and other cases that share aspects with cases heard in the Supreme Court, the D.C. Circuit should remain a breeding ground for Supreme Court Justices for foreseeable. If President Trump can push the center of the circuit farther to the right with more appointments, the nature of the circuit and the decisions it puts out may very well shift right as well. Although the Supreme Court has also become touted as more conservative than in the past based on Trump’s two confirmed nominees, the question remains of whether these reshaped courts will align more closely in their decisions than before as some predict, or if they will each go in their unique directions without any additional shared values between them.
On Twitter: @AdamSFeldman
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