The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As Sam notes below, one notable feature of the vacatur arguments in US v. Texas was the strong resistance of former D.C. Circuit judges, arguing from their personal experience. Here's Chief Justice Roberts:
I mean, this is a long — that's what the D.C. Circuit and other courts of appeals have been doing all the time as a staple of their decision output.
And then an extended . . . statement from Justice Kavanaugh:
Can I move to remedy then because I still have — I have some problems with that, as you might imagine. Set aside, you said the judges on the D.C. Circuit haven't paid attention to text, context, and history. I guess I would respectfully push back pretty strongly on that. I sat with judges like Silberman and Garland and Tatel and Edwards and Williams. They paid a lot of attention to that.
And the government never has made this argument in all the years of the APA, at least not that I remember sitting there for 12 years. I haven't seen it made. It's a pretty radical rewrite, as the Chief Justice says, of what's been standard administrative law practice. And you devote three pages in your brief to this complete change that all these judges have been doing for all these years, and the government comes up and acknowledges that in case after case after case with labor, energy, environmental. And I think it's a big step.
And you say they're not paying attention to the text. Yeah, we did. Set aside means set aside. That's always been understood to mean the — the rule's no longer in place. No one's really had this — no case has ever said what you're saying anywhere. No one — you know, it's a recent law review proposal, good for that, but, you know, that's not been the law. And so I find it pretty astonishing that you come up here and make — and I realize it's not your — you know, the main part of your submission, but I'm just going to push back pretty strongly on the, you know, three pages for just — just toss out decades of — of this Court's law, of circuit law. . . .
So that's not really a question, but that is a . . . comment on what I think is a pretty extreme argument . . .
And then by the time Justice Jackson piled on ("As you might imagine, I would like to circle back to the concerns that the Chief Justice and Justice Kavanaugh raised about vacatur and the argument that you're making in this case,") Justice Kagan chimed in: "Seems to be a kind of D.C. Circuit cartel." Justice Jackson agreed: "It is. It is."
Anyway, this dynamic reminded of something I've read before. In Dred Scott v. Sandford, one of the many astonishing legal claims that Chief Justice Taney made was to question Congress's Article IV authority over the territories. Justice Catron responded with a rejoinder from his personal experience serving on a judge on circuit applying territorial law:
It is due to myself to say, that it is asking much of a judge, who has for nearly twenty years been exercising jurisdiction, from the western Missouri line to the Rocky Mountains, and, on this understanding of the Constitution, inflicting the extreme penalty of death for crimes committed where the direct legislation of Congress was the only rule, to agree that he had been all the while acting in mistake, and as an usurper. 60 U.S. at 522-523.
I think of this as the "Catron principle." Apparently there is an analogous proposition about asking former D.C. Circuit judges to agree that their past practice in administrative review was mistaken. I wonder what they think about Chevron.