Bringing the Federal Courts Out of SCOTUS's Shadow

Event Video

Most lawyers have little time for extracurricular legal interests outside their own practices, but those who do probably focus on what's happening at the Supreme Court. After all, our nation's high court features in political battles and cultural clashes that even non-lawyers care a lot about. This term, the Supreme Court will decide a few dozen cases. A handful of these--such as disputes over affirmative action, administrative power, and election law--will be widely reported and analyzed in the media (and celebrated and protested by average citizens).
The federal courts of appeals hear about 50,000 cases each year. The 11 numbered circuits, along with the Federal and DC Circuits, are bound by Supreme Court precedent, but they decide issues of first impression all the time, often with little or no guidance from the Supreme Court, with petitions for certiorari only rarely resulting in reversals. The sheer numbers involved mean these courts are far more influential than they get credit for. These courts also influence the legal culture by how they decide cases. The shifts in interpretive methodology at the Supreme Court have filtered down to lower federal courts, and rigorous textualist and originalist reasoning can be seen in many opinions issuing from those courts. 
The Federalist Society wants to shine a light on the federal courts of appeals, highlighting some of the important decisions they make and the incisive reasoning they often display. To that end, we have launched Federal Court Docket Watch, a new project in which we will select, summarize, and showcase important federal court opinions on our website. 
We are also hosting a special webinar on the importance of the federal courts of appeals in our legal system. An all-star panel will discuss this topic from their various perspectives as a former federal appellate court judge, a current district court judge, and an academic. Through this event and the new project, we hope to bring the lower federal courts out of the Supreme Court's shadow and highlight their importance to the legal community and American society.
Webinar Featuring:
  • Hon. Thomas Griffith, Former Judge, United States Court of Appeals, D.C. Circuit
  • Erin Hawley, Senior Counsel, Alliance Defending Freedom
  • Hon. Trevor McFadden, Judge, United States District Court, District of Columbia
Federal Court Docket Watch Link:


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Katie McClendon:  Welcome to The Federalist Society’s webinar call. Today, December 13, 2022, we are here to discuss the importance of the federal appellate courts, bringing them out of the Supreme Court’s shadow. My name is Katie McClendon, and I am the Director of Publications at The Federalist Society. As always, please note that all expressions of opinion are those of the experts participating in today’s event. The Federalist Society takes no positions on particular legal or public policy issues.


      Today, we’re very fortunate to have with us Judge Thomas Griffith, Erin Hawley, and Judge Trevor McFadden. I will give very brief introductions, and I encourage you to visit our website for more information about their many accomplishments.


      Judge Griffith served on the United States Court of Appeals for the District of Columbia Circuit from 2005 to 2020. Before that, he served as General Counsel of Brigham Young University, Senate Legal Counsel for the U.S. Senate, and in private practice. He is now a Special Counsel at Hunton Andrews Kurth.


      Ms. Hawley serves as Senior Counsel to the appellate team at Alliance Defending Freedom. She was previously Associate Professor of Law at the University of Missouri, where her scholarship focused on federal courts. She has also practiced appellate law in D.C. law firms and the Department of Justice.


      Judge McFadden was appointed to the United States District Court for the District of Columbia in 2017. Prior to his appointment, he served as Deputy Assistant Attorney General at the Department of Justice and was a partner at a D.C. law firm.


      The panelists will begin by giving some opening remarks, and then we will have some time for discussion among the panelists. After that, we’ll open the floor for Q&A. Throughout the panel, if you have any questions, please submit them through the Q&A feature at the bottom of your Zoom window so that our speakers will have access to them when we get to that portion of the webinar.


      With that, thank you for being with us today. Judge Griffith, the floor is yours.


Hon. Thomas Griffith:  Why thank you, Katie. And thank you to The Federalist Society. I’ve been there from the beginning—and you can tell from the gray hair—and my association with The Federalist Society has been one of the richest sources of inspiration and education that I can imagine, and it’s an honor to be involved with anything The Federalist Society does. And so, thank you for the invitation. I’m also pleased to be here with my dear friend and former colleague, Judge McFadden, and a pleasure for me to finally meet someone I’ve heard about so fondly from so many for so long, Professor Erin Hawley. So thank you for being here.


      So I’m going to tee it up for the others for what, hopefully, will be an interesting and robust discussion about the role of what the Constitution refers to as the inferior courts. Right? The Constitution refers to the “Supreme Court and such other inferior courts as Congress will create,” and the federal courts of appeals is part of that description. I’m going to make four quick points in the time that’s allotted me, and then I’m going to tee up the fifth one for Professor Hawley just by making a little bit of reference to it.


      So first of all, we start with something that’s maybe obvious but ought to be stated again and again in terms of the importance of the federal courts of appeals. Given the Supreme Court’s limited docket and the fact that they have so much discretion over what they hear and don’t hear, it’s the rare case that gets to the Supreme Court. The more typical case in federal courts ends up in the court of appeals, and it ends there. And so, the federal courts of appeals serve as the final word in the vast majority of federal cases that are filed. And so, for that reason alone, we ought to pay attention to how they function, how they’re different than the district court—that Judge McFadden sits on, honorably—how they’re different than the Supreme Court.


      But let me start with some statistics to give you a little bit of an overview of what typically happens on federal courts of appeals. These statistics are from the year 2021. There were 46,000 filings in federal courts of appeals during that year, 23,000 of which were civil, 10,000 of which were criminal. And of the criminal cases, about 80 percent of those were involved in the following offenses: drugs; firearms and explosives; property damage, including -- injury to property, including fraud; and sex offenses. 7,000 of those 46,000 filings were challenging actions of administrative agencies, and in most of the federal circuits, those are immigration cases—85 percent of the administrative actions filed in the federal courts of appeals involve immigration five determination -- I’m sorry, immigration decisions. The outlier from that is the court I had the pleasure of sitting on—the D.C. Circuit -- we hear almost no immigration cases, and yet over 60 percent of our docket is challenges to actions taken by the federal agencies.


      Finally, there are 4,000 actions that are called “original proceedings.” Those are mostly habeas challenges brought by prisoners. And then there’s a category called miscellaneous, and those are class actions. But anyway, it gives you sort of the lay of the land.


      Given the importance of the federal courts of appeals, many political scientists have noticed—and general observers have noticed—that there’s been a real change in the last couple decades in terms of the nomination and confirmation process. Much more time and political capital is spent by presidents and by the Senate in the selection of federal appeals court judges. One can debate whether that’s a good thing or a bad thing. As someone who survived, I guess I could say it’s a good thing. I have some bruises from it, so maybe I could say it’s a bad thing. But it is a topic of great interest and concern throughout the nation and in the judiciary because folks have noticed these have become highly partisan battles. And maybe that’s something that we can talk about when we get to the question and answer—“What, if any, impact that has on the federal courts of appeals?”


      Next to last thing I’ll mention is the dynamics of decision-making on federal courts of appeals are quite different than at the Supreme Court and at the district court. The district court is limited by precedent of the circuit and of the Supreme Court. The district court judge can safely assume that her opinion is going to be reviewed -- likely to be reviewed by the court of appeals, and that’s a significant limitation on her approach to the case.


      The court of appeals, that’s not the case. It’s the rare case by the court of appeals that’s going to make it to the Supreme Court. Decisions by court of appeals can be reviewed by the entire court of appeals—the decision of a three-judge panel can be reviewed by the entire court of appeals. But it varies widely among the circuits as to whether that’s likely to happen. The court that I sat on—the D.C. Circuit—en banc review of a court of appeals decision was quite rare.


      But on the court of appeals, the other factor that you have—which is different than the district courts—is that you have to get two other people to agree with you. And in most of the courts of appeals, the ethic is strongly in favor of unanimous decisions. And so, frequently, you will find judges coming up with a narrower decision to be able to get a majority. Anyway, these are some of the dynamics that work on the court of appeals. So that are a little bit different than the other federal courts. 


      The last point that I’ll mention—and I’ll hand it over to Professor Hawley to tease this out—is that the court of appeals—the federal courts of appeals—serve as a testing ground for arguments that litigants hope to get before the Supreme Court. And Supreme Court uses the courts of appeals as a place to test out arguments frequently before they have a chance to take a crack at them. So with that—what we call the percolating function of the court of appeals—I’ll end my remarks and pass them over to Professor Hawley.


Prof. Erin Hawley:  Thank you so much, Judge Griffith. Thank you, Judge McFadden, and to The Federalist Society for having us today. And absolutely, I am sort of the non-experienced on this panel about federal judges. But from that perspective, I can also be, I think, more laudatory in the sense of -- I think the explanation of today’s panel noted that 55,000 cases are decided by the federal courts of appeals every single year, as compared to about 55 or, perhaps, 60 in a good year, by the United States Supreme Court. So as Judge Griffith ably put it, the federal courts of appeals are really of primary importance in setting the arc of the law for the country as a whole.


      In fact, if you look at Rule 10 of the United States Supreme Court Rules, that’s the rule that governs the cert procedure, and that rule lays out two bases for getting a court to review the case—for getting the Supreme Court to review a case. The first of those is by far the most important. It’s where a conflict exists among the lower federal courts or among the lower state courts of last resort. And if you are serving as a law clerk at the United States Supreme Court, you’re really excited if you get a petition that alleges a 4-5 circuit split or something along those lines. Then you can use words such as “deep and abiding circuit split,” and you know that you might actually have a petition before you that the Supreme Court might actually take.


      On the other hand, if you have a very important issue -- I can recall one from a few years ago that involved a little device known as the BlackBerry. Now, many of you on the call may not be aware of the BlackBerry. It was sort of the precursor to the iPhone, and as a young associate at a law firm, we were all just enthralled by the BlackBerry. You could do email. You could do the precursors to texts. All of these things. It became less enthralling when the little red light buzzed at 2:00 in the morning, but nevertheless, the BlackBerry was sort of the standard fare for legal firms, as well as consulting firms.


      And yet, BlackBerry ran into a very significant patent dispute and, in fact, was found to have infringed a patent—RIM, that provided the technology, actually infringed the patent. But the long story short, after several go-rounds at the Federal Circuit, the upshot was that BlackBerry had about a billion-dollar case, appealed to the Supreme Court. Even though there were significant questions about claim construction and patent issues that I know nothing about, and even though it involved a billion dollars, the Supreme Court denied review. And that’s just one example of a case in which many observers would call important issues, both of law as well as practical consequences. And yet, the lower federal court decision controlled, as it does in some 55,000—or approximately 55,000—other cases every year.


      So in addition to being the final word, another huge benefit of the lower federal courts of appeals is just getting the benefit of these minds weighing in on the most impressive—or most important, I should say—legal issues of the day. As Judge Griffith said, this is known as percolation, and it’s because you have 11 numbered circuits, the D.C. Circuit, and the Federal Circuit that may confront the same legal issues, and they may come out different ways.


      If you think of a case that was just argued at the Supreme Court, 303 Creative, you look through the circuits, and different circuits have had the question of when an artistic product is speech, and they’ve come up with different rationales and different reasoning. And those rationales, reasoning, and cases can inform the Supreme Court’s own decision-making, as well as lawyers litigating cases. So again—to sort of emphasize this—if you’ve got a deep circuit split, one of the reasons the Supreme Court is interested in taking those cases is because lower federal court judges and federal court of appeals judges have had the opportunity to put their minds to work on this legal question, and the justices will have the benefit of that analysis.


      Just two more quick points. One thing we have seen, really, in the recent times—but dating back even till the early 2000s—circuit court judges who are committed to textualism and originalism, pointing out places in which they might disagree with either circuit precedent or even Supreme Court precedent. They do this in a respectful way. It’s usually in a dissent or a concurrence, but these concurrences can point out places in which federal court of appeals judges—or, in turn, federal district judges—think the law of the circuit or of the Supreme Court might have gotten it wrong.


      One obvious example of this is in the abortion context. If we look back all the way to 2004, Judge Edith Jones had a concurrence in which she pointed out that Roe and Casey were not grounded in text, structure, or history. Fast forward 20 years—almost 20 years—Judge Ho is writing that in his concurrence in the case that became Dobbs v. Jackson Women’s Health Organization. In a similar case, out of Tennessee, Judge Thapar is writing a 35-page partial dissent in which he’s laying out for the historical reasons that Roe and Casey were wrongly decided. And you could see this in a number of areas beyond abortion as well. A case where, again, some of the brightest legal minds in the country are having a chance to weigh in, even though they’re bound by Supreme Court precedent, still able to present an alternative theory.


      And then, of course, I couldn’t miss noting the point that Judge Reinhardt had made time and again—as I think he spoke of this at Yale and other places. But he mentioned that -- the question from a Yale law student was, “Well, aren’t you frustrated with the Supreme Court, that they reverse you all of the time?” Judge Reinhardt was notoriously firm in his conviction of sticking to his vision of the Constitution rather than one perhaps propounded by the Supreme Court, and Judge Reinhardt said, “Well, they can’t catch them all.” 


      And that may be a view of judging that I don’t think our panelists here would subscribe to, but there certainly is the reality—again, as pointed out by Judge Griffith—that most of the cases, these important disputes that involve real legal questions and real parties, are decided by the courts of appeals.


Hon. Trevor McFadden:  Well, I just want to echo my thanks to The Federalist Society and my real privilege in being with two long-time friends, Judge Griffith and Professor Hawley. Judge Griffith gave you the incredibly relevant perspective here of the circuits and their role—having been a circuit judge. And Professor Hawley really has tremendous experience in the Supreme Court and how the courts of appeals really impact and tee things up for the Supreme Court. My view is from below, as a trial judge and one of the primary consumers and regulated parties—if you will—from the circuits. And I think Judge Reinhardt is an interesting exception to what I’m going to suggest might be, by far, the rule for federal judges.


      And in my experience, I think federal judges tend to be, by nature, conservative people. I don’t mean that in a political sense. I mean that in a personality sense. After all, if you think about -- in many ways, we are as far as you can get from entrepreneurs. We have entered into a profession that has almost guaranteed life tenure. You’re never going to be a millionaire, but your kids are going to be fed. The risk-reward calculus for a federal judge is very different from just about any other career path. And so, I think there’s -- it attracts a type of person who is, as I say, conservative by nature, and why that’s important is, I think there are very few judges—Judge Reinhardt might be an exception—who look to plow new ground or look to do something new and untested.


      We, I think, by nature, are looking to be able to follow precedent whenever possible and make sure that we are not out on some dalliance or frolic from the legal tradition. And so, that makes the circuit so important because, as Judge Griffith said, there’s actually very -- relatively little case law from the Supreme Court on many, if not most, of the issues that land before the lower courts. And so, of course, we would want to and look to follow Supreme Court precedent if it’s there. But since, often, the Supreme Court will not have addressed the specific issue that we face, we turn, naturally, to circuit precedent.


      Trial courts—and as are circuit judges—are bound by their own circuit precedent, and so, I’m always thrilled when I can find a D.C. Circuit opinion that is on point and directs me to the appropriate resolution of a case. But even that is not always available, and in part, certainly the D.C. Circuit is smaller than some of the other circuits. But some of the issues that we face in trial courts just don’t come up all that often, which is another reason that we look broadly then to other courts of appeals. Even though those precedents are not binding on us, they are very helpful and will be ones that I would typically look to follow.


      One of the things that occurred to me about—even another decision from another circuit—that collegial process that Judge Griffith talked about—this idea that three minds are better than one, that there’s been -- that opinion will have been the result of prior litigation in the lower court, further briefing, and what have you. I think that all doesn’t always ensure correctness and complete accuracy but does lend a certain credence and credibility to the outcome and the decision-making that, frankly -- and, simply, the time that, frankly, we don’t always have in the trial courts.


      In my experience, I think trial courts can be tremendously impactful. Perhaps, a district judge would be the most impactful judge in a particular case. But when you look at the arc of the law, the circuit courts are primarily responsible for construing and developing the law, of course, within the parameters set by the Supreme Court.


      I wanted to add one illustration of the importance of a circuit court opinion versus a district court opinion from a case that came in front of me about four years ago. This was a challenge to what the Department of Agriculture was doing under the Animal Welfare Act. This case was, essentially, a do-over of a case that had arisen in front of one of my very distinguished colleagues four or five years before. I was thrilled to find he had addressed almost every issue that was in front of me, and even better, the parties there had appealed him, and he had been affirmed. The only trick was there were two issues in front of the district judge, and only one of those issues went up to the D.C. Circuit, and the Circuit affirmed him on that issue.


      So anyway, when those two issues came up in front of me, I felt very confident that I could just follow his thoughtful analysis—and, of course, the binding precedent of the D.C. Circuit on the first issue—and be pretty confident that all would go well, but took great -- much to my surprise, this time, the second issue went up to the Circuit that had not been addressed before, and I was unanimously overruled. I must say, I checked, Judge Griffith. You were not on this panel, so [Laughter] I’m not casting any aspersions there.


      But the Circuit didn’t even mention my colleague’s prior opinion, which I had relied on at length. And so, this was a bit of an epiphany for me, as a relatively new district judge, about the importance of binding precedent versus persuasive precedent—and especially persuasive precedent—from the trial courts, that the circuits may or may not find all that persuasive and are free to disregard as they like. 


      And I think there probably is—as I say, given that the different process that comes in the result of a circuit court opinion versus a district court opinion -- I think it’s not surprising that a circuit court would pay a lot more attention, of course, not only to their own binding precedent, in their own circuit, but even to decisions from sister circuits, which while they’re free to ignore, they may well create the type of circuit splits that Professor Hawley mentioned. That, of course, isn’t an issue when you’re looking at decisions from the trial courts and I think just goes to one of the differences between the two courts and the importance of the role the circuits play in the creation of our case law.


Katie McClendon:  Thank you all so much for those insightful opening remarks. I’ll remind our audience to submit their questions by the Q&A feature. But now I want to open it up for discussion among the panelists. Judge Griffith, do you want to respond to or elaborate on anything Professor Hawley or Judge McFadden said? And then you all can take it away.


Hon. Thomas Griffith:  Yeah. First of all, I want to chide Professor Hawley for saying that she’s not experienced in this. Just so our audience knows—if they haven’t looked up her biography already—she clerked for Judge J. Harvie Wilkinson, who many of us think is one of the greatest judges in the history of the Republic, not just living. And then, of course, she clerked for the Chief Justice of the United States, so I think she had some great insights that -- her perspective may be better than those of us who are deeply enmeshed in it.


      So I’d like to raise one issue that either can respond to, but—I briefly alluded to this in my opening remarks—there’s a lot of dissatisfaction with the confirmation process today. Even for courts of appeals judges, the thought is that it’s become too partisan. The judge for whom Professor Hawley first clerked, Judge Wilkinson, has been a strong critic of the current method of confirmation, in which the filibuster is not permitted. I’m a product of the filibuster. I was not President Bush’s first choice for the D.C. Circuit, nor his second, nor his third. [Laughter] I’m what you get when you really want Miguel Estrada, but the democrats filibustered him, and so, you get me. So, therefore, I’m actually in favor of the filibuster. I think it has a tendency to remove some partisanship from the process. Judge Wilkinson shares that view.


      The question I have though—for careful observers, like Professor Hawley and Judge McFadden—is whether it has made a difference at all. I mean, Judge Wilkinson, at the time that the filibuster was eliminated, predicted that judicial nominations would become the special providence of special interest groups who would urge the selection of judges who would have partisan views or ideological views that they favored. That was the warning. Any observation about that, about whether that’s -- maybe Judge McFadden can’t touch that one—probably shouldn’t ask him—but Professor Hawley, do you have any views on that? Have we seen that prediction come to pass, or is it something we should worry about?


Prof. Erin Hawley:  So that’s a really good question, and I’m not sure of the data as to the filibuster process. I think it’s certainly true that the filibuster was a way of ensuring that there was some cooperation across the aisle. I think the confirmation heatedness has been something we’ve seen building for a while, even preceding the filibuster, particularly for the Supreme Court justices, but for court of appeals judges as well. We had visited about this in our call prior to this webinar, but Justice Scalia, of course, was confirmed 98-0, which is something that would never happen today. So we do see a real divide.


      I think one of the reasons we’re seeing this divide is that we, in America and as litigants, are relying on the Supreme Court to decide more and more things. And when things like abortion -- and when these sorts of social, political, and economic issues are divided by the Supreme Court—oftentimes, instead of the elected branches—then we do get these sort of intense debates and intense interest in who might serve on the courts of appeals or on the Supreme Court.


      So definitely, the confirmation process has changed dramatically over time. I’m not sure how much the filibuster process has contributed to that.


Hon. Thomas Griffith:  So if I can be allowed a personal observation. So I was on the D.C. Circuit for 15 years. I was appointed by President George W. Bush, and I consider myself an originalist and a textualist, and on top of that, a judicial conservative—a minimalist. Right? So I’m sort of old school in that regard. Not all of my colleagues had that background or those inclinations—those approaches—and yet, in 15 years on the D.C. Circuit, I never once -- I mean this—I never once saw any of my colleagues, whether they were appointed by President Obama or President Trump or whoever -- I never once saw them cast a vote that I thought was really an expression of their partisan preferences.


      There were differences, to be sure, but they were differences over how to read a text, how to construe a constitutional provision, the rule of deference. I mean, these are legal issues. They’re not partisan issues. And so, I guess I would have to say, in response to Judge Wilkinson’s forecast, that I haven’t seen that. I haven’t seen that yet. What I see is -- I mean, we all remember the chief justice’s rebuke of President Obama, when President Obama -- I’m sorry, President Trump -- when President Trump dismissed a decision that he didn’t like, and he called him an Obama judge. Remarkable that—the same day, I believe it was—the chief justice issued a statement saying, “We don’t have Obama judges and Bush judges and Trump judges.” A lot of people thought the chief justice was being naïve. I actually don’t think so. So my point is, I haven’t seen that yet. I see judges struggling with legal issues, not jockeying to advance partisan policies they favor. But maybe I’m being fooled. I don’t know.


Prof. Erin Hawley:  I think one example, too, that you see of that—of course, to go back to Justice Scalia again—is his well-known friendship with Justice Ginsberg—very much different outcomes in some of the heated cases of the day, but they respected one another’s legal judgment and integrity. And so, I think that’s another good example of that.


Hon. Thomas Griffith:  Can I add to that? And I think Justice Kavanaugh has said this publicly, so I don’t think I’m out of school here. But we all sadly remember his brutal confirmation process. It was just unseemly in so many ways. He was confirmed on a Saturday afternoon and immediately took the oath of office, which was a good thing to do, and then later that day was in his chambers preparing for arguments that were going to be the next Tuesday. Within 24 hours of his confirmation, every single one of his new colleagues came by to pay a personal visit to him on a weekend in chambers. I wish that’s a story that more people knew. These people—and it’s the same on the court of appeals—we disagree over things, but there’s a level of friendship and respect that generally prevails.


      I mean, every once in a while, somebody will throw a sharp elbow, and people will cry foul. But these are people who have deep respect for one another and respect for the process that got them there. I wish more people in the media—I wish more pundits—saw that. I think if they did, there would be less complaining about our judiciary.


      I’m taking too much time, but in the wake of Dobbs, I was interviewed by a Washington Post -- at a Washington Post webinar about the Supreme Court. And the question inevitably came up of, “So why is the judiciary held in such low regard by Americans today?” And my response was, “Well, you all keep writing that it’s partisan, and you keep driving that home.”


      I think the best response to this is the one that Justice Barrett gave. She said, “For those of you who claim we’re partisan hacks, read our opinions. Read our opinions.” Now, the problem with that is they’re long. Right? But if people do that—and this [inaudible 34:35] to the court of appeals as well—what you’ll see is not partisans jockeying for position. You’ll see serious people wrestling with difficult legal issues, not political issues. Okay, I’ve gone too long with my sermon, but thank you.


Hon. Trevor McFadden:  I was going to add just brief vignette from my courthouse—your old courthouse, Judge—the judges dining room and what a wonderful tradition we had for many years, really, up to COVID, of a number of us gathering for lunch over -- from generations—various generations and presidential appointments. And then Judge Kavanaugh was a regular attender there and I know was and is much loved by judges in our courthouse. But I think that there is something -- one of the neat things about being in the D.C. Circuit courts is that we’re all together in that same building and the opportunities both for the law clerks and for the judges to see each other regularly and to have that interaction.


Hon. Thomas Griffith:  Yeah. And I -- again, I was the direct beneficiary of that. That’s how I got to know your former colleague, Justice Jackson, because we were in the same courthouse and ran into each other and became friends, and therefore, she asked me to introduce her at her confirmation hearings, which I was happy to do. Apparently, some people thought it was newsworthy that a political conservative who had been appointed by George W. Bush would recommend the confirmation of a political progressive who was being nominated by President Biden. But as Erin pointed out, in the old days, there was nothing novel about that at all—Scalia 98-0, Ginsberg 96-3—anyway.


Hon. Trevor McFadden:  Looping back to something. Professor Hawley mentioned the importance of judges’ solo concurrences or dissents and raising issues up to the Supreme Court. It was occurring to me, in light of Bruen and the Supreme Court’s, really, call on federal courts to re-examine Second Amendment challenges with a real originalist, I think, focus on history and tradition of what gun laws would have looked like at the time of the Second Amendment, and I think that is a process that we’re all in. It’s, in some ways, potentially a challenging one to make sure that you have your arms around the historical record and understand how those would have fit into the jurisprudence of the time.


      But I think that’s a great example of where, especially the circuits -- although I think the district courts may well have to do a lot in terms of record building, potentially. But I think that’s an important and a difficult undertaking and probably one that, with the rise of originalism, we’re going to be needing to do in more and more areas—thinking rigorously, not just, “What would I like the Constitution to say,” but, “What does it say? What did it mean to those who ratified it?” And understanding that historical context is something that’s going to land heavily, I think, on the circuit courts.


Hon. Thomas Griffith:  And that’s a great example because if you read -- let’s go back to Heller. Justice Scalia’s masterful opinion in Heller was based, in large measure, on Judge Silberman’s opinion in—the case was then called Parker—the D.C. Circuit. And I had the pleasure to be on that panel. And in many ways, Judge Silberman viewed that as a sort of capstone of his magnificent career, and Justice Scalia relied heavily on that. It was an example of what Erin was talking about, the percolating.


      Same thing with Bruen. If you read Bruen, Justice Thomas relies heavily on—surprisingly—some Second Amendment cases in the D.C. Circuit, of all places. And I mention that with some sense of pride and ego because he relied on some of my work. So that’s an example. I can also give you examples where they have not relied on my work. [Laughter] But that’s an example of what Professor Hawley was talking about.


Prof. Erin Hawley:  And I think Bruen is such a good example, too, because the cases that they cited for, in looking for history and tradition, were First Amendment cases. So that raises the question of how far is the Court willing to re-examine its prior precedent, based on originalism and historical research. And maybe it’s beyond the Second Amendment, in which case, the federal courts will be very busy digging into all of that.


Hon. Thomas Griffith:  So, Erin, we didn’t plan for me to ask you this question, and so, if it’s a bad one, don’t answer it. But from your perspective, as a former Supreme Court clerk, how much attention do the justices pay to decisions by court of appeals, particularly when they are penned by judges who they know and have confidence in? I can’t remember if it was you or Judge McFadden gave examples of the concurrences. You did, in the Dobbs case. How common is that? How important is that?


Prof. Erin Hawley:  I think it’s very important—these different concurrences—for two reasons. The first is—as you mentioned—given the Supreme Court’s discretionary jurisdiction, these concurrences or dissents from en banc review, or those sorts of things, are really important in highlighting that there are actual conflicts of the law that need to be resolved—or just disagreement. I think there were a number of concurrences or even -- I think they’re mostly concurrences, just pointing out that the lower court judges didn’t know what to do under June Medical and some of the Court’s abortion cases and so, that highlighted that the Court needed to take the case.


      And then you’ve got the substantive reasoning as well. And I think, particularly, judges that the Supreme Court justices have worked with before, that respect their work—those sorts of things—absolutely, they matter tremendously.


Hon. Thomas Griffith:  So I think as litigant then, therefore, that becomes really important. Right? If you’re in front of the court of appeals, and you have a tough issue, maybe the best that you can hope for is to get a judge who has some relationship—I don’t know the way to phrase that—with the Supreme Court—who is respected by the Supreme Court—to write separately -- to write separately for you.


      So I think it’s interesting that some of these that you refer to were concurrences. Right? Not always dissents. But when judge -- look. Let’s be candid. When Judge Wilkinson writes separately about something, everyone pays attention. And I think that’s true for a number of other judges, as well, on the court of appeals. So they serve that sort of -- that’s the percolating function. It’s like, they’ve identified an issue that the justices will pay attention to, hopefully.


Hon. Trevor McFadden:  It’s an interesting point about the en banc process. And this is—my guess—perhaps true, especially in a couple of the -- a few of the circuits, where a litigant may not really have any hope of getting the en banc court to take, let alone reverse the panel opinion, but that—I think they’re called dissentals now. Is that the term we use for a dissent from rehearing en banc—can have a separate role as a signaling device to the justices.


      It also occurs to me while, A, I did not clerk in the Supreme Court and, B, I’m quite confident that the justices themselves are making the final call, the cert pool at the Supreme Court is pretty well-known and is staffed by Supreme Court clerks who almost all are former clerks at the courts of appeals and, therefore, have first-hand knowledge of the circuit judges and—both for whom they clerked and others—judges, particularly, in their circuits. And so, I think those -- I imagine those law clerks can play a very important role in flagging cases from circuit judges for their justices.


Katie McClendon:  Thank you, all. Let’s turn to some audience questions now. We have one here from great Federalist Society friend, Jeff Wood. I’ll just go ahead and read the question, and you all can respond as you’d like.


      He asks, “Are there any special avenues of review for federal district court equitable or quasi-equitable orders—such as injunctions, mandamus, etc.—that purport to have national effect? This seems to be a particularly fraught area for how the judiciary fits into overall federalism. I’d also be interested in the panelists’ thoughts about such orders, in general.”


Hon. Trevor McFadden:  Well, my greetings to Jeff Wood. He’s a wonderful lawyer and a good friend of mine. I’ll leave it to the other two to talk about the propriety of these. But when there is a -- this equitable relief, it typically would come up in the posture of a preliminary injunction and, perhaps, an emergency preliminary injunction that was presented to a district judge and a district judge granted. And while those are not unusual—I get probably half a dozen to a dozen each year, motions for a preliminary injunction—they typically just bind the parties to the case and would be, therefore, relevant to one or more plaintiffs and the defendant. I think Jeff is referring, though, to the rise of nationwide injunctions, which, in fact, have—you might say—skyrocketed over the last few decades. This is actually a creation, I believe, of the D.C. Circuit from the 1970s. Judge Griffith may know better than me but --


Hon. Thomas Griffith:  Yeah. And we refer to the 1970s as the bad old days of [inaudible 46:33].


Hon. Trevor McFadden:  [Laughter] I was born in the 1970s. I mean, Professor Hawley did, too, so --


Hon. Thomas Griffith:  No. I mean, for the jurisprudence of the D.C. Circuit. Not for life, in general.


Hon. Trevor McFadden:  So the nationwide injunctions really did not -- had one or two in the 1970s. You saw a few then in the 1990s. I believe there were, maybe, eight or so in the eight years of George W. Bush’s tenure, somewhere in the teens in the eight years of President Obama’s tenure of eight years. And then I’ve heard the number was 55 in the first 3 years of President Trump. And I know there have been a number, now, under President Biden. So there certainly has been a significant rise in them.


      As I say, those get teed up and—unlike the typical one which is just between a couple plaintiffs or the plaintiff and the defendant—those would, as I say, apply nationwide, against all -- the government against everybody else. And there is an emergency review. A preliminary injunction is considered a final appealable order, and so, it can get teed up to the court of appeals. And Judge Griffith could talk about this more, but I think that the court of appeals can certainly review those quite rapidly. So I know there’s been a lot of attention paid to those—in part, just because they’ve been a lot more numerous in recent years than historically—and it is an interesting aberration from the typical way these -- typical ways matters percolate in the federal courts.


Prof. Erin Hawley:  I think the question also is interesting in that it raises the fact that these are typically equitable remedies. Professor Sam Bray has done some excellent work on looking at what that meant historically and whether, perhaps, it applied just to the parties pending before the lawsuit or, rather, more broadly. I think Justices Thomas and Gorsuch have raised similar issues with nationwide injunctions.


Hon. Thomas Griffith:  And as an old-school judicial conservative, who thinks that the primary role of our project is to limit the role of the judiciary, it’s a development that I think is not healthy for the Republic. It seems too much like politics being played out in the judiciary, and I don’t like that.


Hon. Trevor McFadden:  So, Judge, since you’re no longer sitting, I want to --


Hon. Thomas Griffith:  You want me to stand up now?


Hon. Trevor McFadden:  -- follow up with you on that. You’re probably aware, within the last week or so, there was this interesting back and forth in the Supreme Court over vacatures, which end up having a very similar effect, even though they’re of one party getting a federal executive order vacated for everyone, even though everybody else was not in front of that court. And I believe your former colleagues from the D.C. Circuit, who are now on the Supreme Court, kind of took issue with the suggestion that there was anything wrong with that versus an equitable relief. These vacatur orders arise under the APA. Wondered if you had any thoughts about that.


Hon. Thomas Griffith:  Yeah. So unfortunately, I’m on record on that, so I can’t change my views. I was persuaded by Judge Randolph, when I was on the D.C. Circuit, that if something’s unlawful, it’s unlawful, and it should be vacated instead of remanded to fix. So I’m not -- my views are in -- I’m teachable. But I was in that school of thought on the D.C. Circuit, which you saw emerged in the [inaudible 50:59]. What was the phrase that Chief Justice used about vacating five times --


Hon. Trevor McFadden:  Five times before lunch, I believe.


Hon. Thomas Griffith:  -- before breakfast or something. [Laughter]


Hon. Trevor McFadden:  Was it breakfast?


Hon. Thomas Griffith:  Yeah. I think that’s what it was. So I think I was heavily influenced by that school of thought, but…


Katie McClendon:  We have another question that goes to the conversation around appointments. Our viewer says, “This judiciary, in general, is quite distinguished, but the confirmation process is so contentious that one wonders to what extent good judicial candidates have been discouraged from getting involved or being recruited. Please comment.” So, wonder if you have any reactions to that.


Hon. Thomas Griffith:  Yeah. I don’t know of anyone being approached about—and I think I can just speak from the court of appeals experience—being appointed to a court of appeals who has said no because of that, but perhaps they exist. But I will -- don’t feel sorry for federal appeals court judges. It’s a great appointment. It’s a great life. It’s the best job -- second-best job in the world.


      But it really is awful the way the process has devolved. And so, maybe there are folks who have said, “Thanks, but no thanks.” But I’m not aware of anyone. Everyone I know, when approached about it, counts the cost and says, “Okay. Here we go.” But it’s such a wonderful opportunity to serve that they go through it. But maybe Professor Hawley and Judge McFadden have a different perspective or greater experience with that.


Prof. Erin Hawley:  That seems to be, probably, generally true. I do think, if you think about Justice Kavanaugh or Justice Barrett, who was accused of all sorts of things -- for having adopted children, of all things, or being a working mom, like those sorts of things, and you would think would just be off limits and yet were not in the current political climate. So absolutely amazing opportunity and things -- I think people approach the process knowing that it might be brutal but that it’s worth it, ultimately, to be able to serve.


Katie McClendon:  Judge Griffith, did you have any further thoughts on possibilities, maybe, short of restoring the filibuster, for reducing the partisanship of the process?


Hon. Thomas Griffith:  Yeah. Yeah. So I do, and it rises out of my experience testifying on behalf of Justice -- then Judge Jackson, now Justice Jackson. I got some really -- lots of private responses from folks who are involved in the process—both on the executive side and the congressional side—saying, “Gee. Yeah. Wouldn’t it be great if?” And it’s born of the idea -- I have the idea that presidents ought to get their people as judges. Elections have consequences, and if you elect a conservative president, he or she’s more likely going to pick somebody who has an originalist, textualist view, and that’s fine. And vice versa. Right? I mean, vice versa.


      So I come to the view that presidents ought to be able to get highly qualified, confident people to their own liking. And so, there was lots of interest expressed privately from both sides of the aisle. Stay tuned. I doubt change will happen, but there are a number of us old timers who are—on both sides of the aisle—committed to trying to see if something can be done because I think everyone agrees the status quo just isn’t satisfactory.


      Professor Hawley mentioned Justice Scalia being confirmed 98-0, and then his protégé, Amy Coney Barrett, doesn’t draw a single vote from the other side of the aisle. Something’s changed, definitely. Then the question is, is it a change for the better or for the worse? I think it’s a change for the worse, and I’m hopeful that some change can happen. We’re going to try. I’m hopeful, but hope springs eternal. Faith is the substance of things hoped for, the evidence of things not seen, so we’ll see. We’ll see what comes of it.



Katie McClendon:  On behalf of The Federalist Society, I want to thank our experts for sharing their valuable time and expertise with us today. And thank you to our audience for joining and participating. We welcome audience feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming virtual events. Thank you all for joining us today. We are adjourned.