The Volokh Conspiracy

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The Supreme Court Still Has Not Appointed A New Circuit Justice For the Second Circuit

The Court selected a replacement for the Fifth Circuit twelve days after Justice Scalia died.


Justice Scalia passed away on February 13, 2016. Twelve days later, on February 25, 2016, the Supreme Court announced that Justice Thomas would serve as the Circuit Justice for the Fifth Circuit. (This appointment was temporary, as Justice Alito was later selected as the permanent Circuit Justice).

The Court still has not selected a new Circuit Justice for the Second Circuit. Would an emergency stay application form the Second Circuit still be addressed to Circuit Justice Ginsburg? That sort of caption is Reinhardt-esque.

My guess is that Justice Sotomayor, the native New Yorker, will get the nod for the Second Circuit. Justice Kagan, also a New Yorker, is lower on the list of seniority. And Justice Gorsuch will take over the Tenth Circuit from Justice Sotomayor. And, more likely than not, Justice Barrett will pick up the Eighth Circuit from Justice Gorsuch–close enough to Indiana. Unless Kavanaugh swaps with Barrett, and gives her the Seventh. Kagan, alas, is likely stuck with the Ninth Circuit for some time.

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19 responses to “The Supreme Court Still Has Not Appointed A New Circuit Justice For the Second Circuit

  1. “…Unless Kavanaugh swaps with Barrett, and gives her the Seventh. Kagan, alas, is likely stuck with the Ninth Circuit for some time….”

    Josh; I did not understand this last point. Can you explain? The way you word it (ie, that Kagan will be stuck with the Ninth) makes it sound like it’s something Kagan affirmatively does not want. Is that actually true? Are there logistical or other reasons why Kagan would prefer one of the other circuits?

    1. Why would anyone want to deal with the 9th? Whether its reputation is deserved or not, it is the biggest district and probably generates more work just from size alone. It also has the left coast hot spots of Seattle, Portland, and San Francisco.

    2. Does the Circuit Justice have to visit the circuit? If so, there’s the issue of time spent traveling to the West Coast.

      1. They usually attend Circuit Judicial Conferences but other than that it’s not required. The legitimate concerns of being “stuck” with the Ninth are that its an extremely busy Circuit so that means more emergency applications and more rulings on petition stage procedural motions.

  2. What are the predictions for next spring’s “13 Justices For 13 Circuits” Court (or the “Obama Court” for short).

    1. Keep dreaming.

      1. You still counting on sweet tiny eight-pound, six-ounce cuddly newborn baby cuddly Jesus putting his beautiful tiny little golden-fleeced infant thumb on the scale to give Trump the election?

        1. No, I was never counting on that. After all, you are doing a great job of it.

  3. A game of musical chairs.

    1. More like a musical GAME OF THRONES.

  4. Thanks Josh. These are the tedious but interesting to me things that I like to see. Excuse my ignorance, but what exactly does a Circuit Justice do?

    1. They handle applications for emergency stays from the Circuit that they cover. Often they will refer them to the full Court for consideration, but not always. They also grant and deny requests for extensions of time for filings at the petition stage.

  5. Seems particularly interesting/relevant in light of the Second’s Circuit decision in Trump v. Vance yesterday. (Was that only yesterday?!? Seems like forever ago already.)

    Trump is presumably going to appeal. Vance has said he’s voluntarily not enforcing the subpoena for twelve days, but that implies someone at the Supreme Court is going to need to take a look in a hurry and potentially grant an emergency stay if they’re going to take a harder look at the case.

    1. These subpoenas are no longer relevant to whether Trump wins the election.

      They seem destined, however, to be relevant to whether he is jailed next year.

      How many state prosecutors have Jan. 21 circled on their calendars?

  6. Alas, the 9th circuit is stuck with Kagan…

  7. One more argument to increase the Court from nine to eleven. And yes, to answer others commenting, the Justices should go back to ‘riding circuit’ now and then, if only to point out in conference the many flaws in Circuit reasoning _before_ SCOTUS has to take the case GVR and have it ruled correctly. It would save a lot of time to have more Circuit opinions align with Court precedent beforehand.

    1. Kagan on a mule, riding around…

      That’d be a treat

    2. The justices aren’t any smarter than the judges. And they don’t always agree with each other so I don’t know why a single justice’s opinion should hold special sway.