1937
A DISTINCTIVE COURT: A GLIMPSE INTO
THE HISTORY AND SIGNIFICANCE OF
THE D.C. CIRCUIT
Judge J. Michelle Childs*
INTRODUCTION…………………………………………………………………….. 1937
I. THE D.C. CIRCUIT’S ORIGINS AS A COURT FOR THE NATION ….. 1939
II. BUILDING A NATIONAL COURT: THE COMPOSITION,
JURISDICTION, AND DOCKET OF THE
D.C. CIRCUIT TODAY ………………………………………………….. 1942
III. A NATIONAL COURT BEYOND ADMINISTRATIVE LAW………… 1944
IV. A COURT IN HISTORY ……………………………………………………… 1947
V. A COURT FOR THE FUTURE ………………………………………………. 1949
INTRODUCTION
The U.S. Court of Appeals for the District of Columbia Circuit is quite
unique. As Chief Justice Roberts once pointed out, “Things are different in
the District of Columbia Circuit.”1 As a former state and federal trial judge
of many years, I can truly attest to that statement.
In the D.C. Circuit, we pride ourselves on our collegiality. Justice Ruth
Bader Ginsburg once described our court as a “model of collegiality and
efficiency,” thanking my colleague Judge Harry T. Edwards for steering our
court—during his tenure as chief judge—on a “course of caring
* Circuit Judge, U.S. Court of Appeals for the District of Columbia Circuit. For excellent
research assistance, I am grateful to my law clerk, Edgar Melgar, and externs Nicole Plante
(Yale Law School), Adam Soliman (Georgetown University Law Center), and Gloria Zhang
(Georgetown University Law Center). Thanks to Professor James Brudney for his kind
invitation and engaging conversation to further develop this publication. I would also like to
thank the Fordham Law Review editorial team for their review and suggestions. The views
expressed in this Essay are my own and do not represent the views of the U.S. Court of Appeals
for the District of Columbia or the federal judiciary.
1. John G. Roberts, Jr., What Makes the D.C. Circuit Different?: A Historical View, 92
VA. L. REV. 375, 375 (2013).1938 FORDHAM LAW REVIEW [Vol. 93
collegiality.”2 Collegiality helps encourage earnest and frank deliberation in
the challenging cases we consider.
Relative to other circuits, our docket is distinct. We hear a significant
number of petitions to review agency actions and cases that address other
regulatory matters.3 Much of our work examines the nuts and bolts of
government, like how the Federal Energy Regulatory Commission keeps the
electricity running to our homes,4 or how the U.S. Food and Drug
Administration ensures our drugs are safe.5
And we are the federal court of appeals for our nation’s capital. Our
courthouse is located across the street from the National Mall. We see the
Capitol from our windows, and the White House is straight down
Pennsylvania Avenue. We are often called to address questions relating to
the structure of our government, such as the separation of powers, the
appointment and removal of federal employees and officers, and national
security.6 These cases require that we think carefully not only about the
specific parties to a case but also about the impact a particular ruling may
have on the country as a whole.
As you explore with me the work of the D.C. Circuit, I submit that what
makes the D.C. Circuit particularly unique is its role in addressing questions
of national significance. In the first half of this Essay, I will begin by
describing the distinct origins, structure, and docket of the D.C. Circuit.
From its early years, the D.C. Circuit has considered issues involving the
federal government. With the growth of the administrative state in the
twentieth century, the D.C. Circuit became more involved in reviewing
regulations. Today, the D.C. Circuit’s composition, jurisdiction, and docket
reflect its role in examining issues of national importance, particularly
around regulations. To resolve those questions, we often reflect on our
nation’s history and our court’s responsibility for shaping the nation’s future.
In the second half, I will turn to history and change. Cases before the D.C.
Circuit may require that we engage with history, either because the record
under review includes a historical archive, or because we turn to history to
shed light on a question of law. At times, we must also reflect on the
historical significance of our cases. Our decisions, ultimately, will face the
2. Pamela Harris, Daphna Renan & Sri Srinivasan, A Model of Collegiality: Judge Harry
T. Edwards, 105 JUDICATURE, no. 1, 2021, at 76.
3. See Eric M. Fraser, David K. Kessler, Matthew J.B. Lawrence & Stephen A. Calhoun,
The Jurisdiction of the D.C. Circuit, 23 CORNELL J.L. & PUB. POL’Y 131, 148–52 (2013).
4. See Hecate Energy LLC v. Fed. Energy Regul. Comm’n, 126 F.4th 660 (D.C. Cir.
2025) (examining the temporary expedited process for processing requests to connect new
electricity generators to the grid).
5. See Vanda Pharms., Inc. v. FDA, 123 F.4th 513 (D.C. Cir. 2024) (reviewing request
for fast-track designation for investigational new drug product).
6. See, e.g., Trump v. Mazars USA, LLP, 39 F.4th 774 (D.C. Cir. 2022) (examining a
congressional committee’s power to subpoena a president’s financial records); Esparraguera
v. Dep’t of the Army, 101 F.4th 28 (D.C. Cir. 2024) (reviewing the procedure for demotion
of a career Senior Executive Service employee); Khadr v. United States, 67 F.4th 413 (D.C.
Cir. 2023) (reviewing proceedings against a former Guantanamo Bay detainee before the U.S.
Court of Military Commission Review).2025] A DISTINCTIVE COURT 1939
court of history. And because our cases involve weighty national issues, their
impact may extend well into the future. Our court, however, has proved
resilient to change, adapting to new challenges.
I. THE D.C. CIRCUIT’S ORIGINS AS A
COURT FOR THE NATION
Even from its origins, the D.C. Circuit’s structure and docket has been
unique, reflecting its responsibility for resolving disputes specific to the
District of Columbia and for addressing issues of nationwide importance.
Soon after it established the District of Columbia, Congress recognized the
need for a federal court for the nation’s capital. The District of Columbia
Organic Act of 18017 created the Circuit Court of the District of Columbia.8
That court was to have broad jurisdiction over “all crimes and offences
committed within [the District], and of all cases in law and equity between
parties,” and “all actions or suits of a civil nature at common law or in equity,
in which the United States shall be plaintiffs or complainants.”9 Over time,
the circuit court’s functions evolved in response to the needs of the district
and the nation.
Unlike other federal courts at the time, the D.C. Circuit exercised general
jurisdiction over claims arising in the District of Columbia.10 Early in its
history, the D.C. Circuit heard cases on matters that today would mostly be
addressed by state courts. Should it be an offense at common law to
“encourage a fierce and dangerous dog” to bite a cow?11 In an action against
a deputy postmaster for negligence, could the instructions of the postmaster
general be given in evidence?12 Is it assault and battery for carpenters
building a house “to remove, gently, all persons who come into the building
without authority” after they have been asked to leave?13 In answering these
questions, the D.C. Circuit worked to resolve the everyday questions of law
that any local court had to manage.
Because of this general jurisdiction, the D.C. Circuit’s docket also
included cases on the most challenging issue of the time—slavery. One case
asked, for instance, what was the status of an enslaved person who was
brought to Washington by a member of Congress while he was attending
Congress.14 Another asked whether the City of Washington prohibits free
Black persons from selling perfumes.15 The D.C. Circuit was one of the first
federal courts to find that free Black persons could serve as witnesses in all
7. Act of Feb. 27, 1801, ch. 15, 2 Stat. 103 (repealed 1863).
8. Id. at 105–06.
9. Id. at 106.
10. United States ex rel. Stokes v. Kendall, 5 D.C. (5 Cranch) 163, 174 (1837); see also
Fraser et al., supra note 3, at 134–35.
11. United States v. McDuell, 5 D.C. (5 Cranch) 391, 391 (1838).
12. Dunlop v. Munroe, 1 D.C. (1 Cranch) 536, 538 (1809).
13. United States v. Bartle, 1 D.C. (1 Cranch) 236, 236 (1805).
14. Maria v. White, 3 D.C. (3 Cranch) 663, 663–64 (1829).
15. Carey v. Corp. of Washington, 5 D.C. (5 Cranch) 13, 13–14 (1836).1940 FORDHAM LAW REVIEW [Vol. 93
cases, holding that “color alone does not disqualify a witness.”16 Although
these cases stemmed from the court’s local jurisdiction, they had symbolic
nationwide impact as decisions by the court for the nation’s capital.
Beyond local matters, the D.C. Circuit had a notable role in national
affairs, particularly around the structure and power of the federal
government. For over one hundred years, the D.C. Circuit was the only
federal court with the power to issue a writ of mandamus against a federal
official.17 In United States ex rel. Stokes v. Kendall,18 the D.C. Circuit held
that it could instruct the postmaster general to perform a ministerial task
commanded by an act of Congress.19 The case also queried the scope of
presidential power over officers—a question that would repeatedly come
before the court in the future.20 Moreover, because of its unique power to
issue mandamus against federal officers, plaintiffs often brought challenges
to ministerial decisions by federal officers before the D.C. Circuit.21
During the Civil War, the distinct role of the D.C. Circuit in adjudicating
issues of nationwide importance again became evident. Then, the main
question was the scope of the writ of habeas corpus. The court was asked to
determine whether a writ of habeas corpus could issue against the army,
ordering the release of child soldiers who had enlisted without parental
consent.22 Judge William M. Merrick granted the release of two enlisted
minors.23 In resolving these disputes, the D.C. Circuit foreshadowed its
future part in resolving issues of national security and military affairs,
particularly at times of war.
With the rise of the administrative state, the D.C. Circuit took on a
prominent role in reviewing agency decisions. In 1933, considering a
challenge by D.C. judges to their employment protections, the U.S. Supreme
Court recognized that the D.C. Circuit tended to hear more cases “affecting
the operations of the general government and its various departments.”24
Nonetheless, during the first half of the twentieth century, it seemed like the
U.S. Courts of Appeals for the Second or Ninth Circuits, with geographic
jurisdiction over the hubs of commerce and industry, might have a more
prominent hand in shaping administrative law.25 When the Administrative
16. United States v. Mullany, 1 D.C. (1 Cranch) 517, 521 (1808).
17. United States ex rel. Work v. Boutwell, 10 D.C. (3 MacArth.) 172, 172 (1879).
18. 5 D.C. (5 Cranch) 163 (1837).
19. Id. at 163.
20. Id. at 256–76.
21. E.g., Butterworth v. United States, 112 U.S. 50, 51 (1884); United States v. Schurz,
102 U.S. 378, 379 (1880); Seymour v. United States ex rel. South Carolina, 2 App. D.C. 240,
242 (1894); United States ex rel. Bigelow v. Thacher, 9 D.C. (2 MacArth.) 24, 24 (1875); Hull
v. Comm’r of Patents, 9 D.C. (2 MacArth.) 90, 90 (1875).
22. United States ex rel. Murphy v. Porter, 27 F. Cas. 599, 601 (C.C.D.C. 1861) (No.
16074A).
23. See id.
24. O’Donoghue v. United States, 289 U.S. 516, 535 (1933).
25. See, e.g., Hearst Pub., Inc. v. NLRB, 136 F.2d 608 (9th Cir. 1943), rev’d, 322 U.S.
111 (1944); NLRB v. Universal Camera Corp., 179 F.2d 749 (2d Cir. 1950), rev’d, 340 U.S.
474 (1951).2025] A DISTINCTIVE COURT 1941
Procedure Act26 (APA) was enacted in 1946, Congress did not assign the
D.C. Circuit any unique responsibilities. The APA did not, for example,
choose the approach taken by other countries to centralize appeals of
administrative law questions in a single specialized court.27 But around the
1940s, the D.C. Circuit’s future role in shaping administrative law started to
become evident. The Supreme Court’s decision in Securities & Exchange
Commission v. Chenery Corp.,28 finding that courts will limit their review of
agency actions “to a judgment upon the validity of the grounds upon which
the [agency] itself based its action,”29 began as a D.C. Circuit review of an
action by the U.S. Securities and Exchange Commission.30
As the administrative state expanded during the second half of the
twentieth century, the D.C. Circuit was given greater responsibility for
reviewing agency actions. When Congress adopted statutes creating new
regulatory frameworks, particularly in environmental law, it often tasked the
D.C. Circuit with reviewing agency rulemaking. The Clean Air Act,31 for
example, provides that challenges to certain regulations must be brought
before the D.C. Circuit.32 The D.C. Circuit, thus, began to hear cases that
facially had nationwide implications: How should the U.S. Environmental
Protection Agency define the nationwide air quality standards for ozone or
particulate matter?33 These cases required that we think more robustly about
administrative law principles.
Indeed, during the latter half of the twentieth century, some of the most
prominent decisions in administrative law came from the D.C. Circuit.
Decisions by the D.C. Circuit, for example, were important to the
development of standards for reviewing the reasonableness of agency
decision-making,34 particularly after the Supreme Court’s decision in Motor
Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance
Co.35 This new charge, however, built on the D.C. Circuit’s earlier role in
26. 5 U.S.C. §§ 551–559.
27. See generally Andrew Hammond, The D.C. Circuit as a Conseil D’État, 61 HARV. J.
ON LEG. 81 (2024) (comparing the D.C. Circuit with the Conseil d’État, France’s specialized
administrative law court).
28. 318 U.S. 80 (1943).
29. Id. at 88.
30. Chenery Corp. v. Sec. & Exch. Comm’n, 128 F.2d 303 (D.C. Cir. 1942), vacated, 318
U.S. 80 (1943).
31. 42 U.S.C §§ 7401–7675.
32. Id. § 7607(b)(1).
33. Am. Trucking Ass’ns v. EPA, 175 F.3d 1027, 1033 (D.C. Cir. 1999), aff’d in part,
rev’d in part, Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001).
34. See, e.g., Greater Bos. Television Corp. v. FCC, 444 F.2d 841, 855 (D.C. Cir. 1970);
Ethyl Corp. v. EPA, 541 F.2d 1, 68–69 (D.C. Cir. 1976) (Leventhal, J., concurring); see also
Hammond, supra note 27, 114–15.
35. 463 U.S. 29 (1983); see, e.g., Pub. Citizen v. Steed, 733 F.2d 93, 94, 105 (D.C. Cir.
1984) (applying the Supreme Court’s State Farm doctrine to hold that suspension of tire tread
requirements by the National Highway Traffic and Safety Administration (NHTSA) was
arbitrary and capricious because the suspension contravened NHTSA’s obligations under
federal law); Brae Corp. v. United States, 740 F.2d 1023, 1039, 104243 (D.C. Cir. 1984)
(applying the Supreme Court’s State Farm doctrine to find that the Interstate Commerce
Commission did not act arbitrarily and capriciously in ruling that some railroads did not have1942 FORDHAM LAW REVIEW [Vol. 93
resolving disputes of nationwide significance, including matters related to
the federal government.
II. BUILDING A NATIONAL COURT: THE
COMPOSITION, JURISDICTION, AND DOCKET OF
THE D.C. CIRCUIT TODAY
By the turn of the twenty-first century, the D.C. Circuit’s distinctiveness
as a national court was evident. Today, three features show the D.C. Circuit’s
structure as a court for the nation: its composition, its jurisdiction, and its
docket.
The D.C. Circuit’s current composition reflects its nationwide importance.
There is a long-standing tradition of judges from outside the District of
Columbia being appointed to the D.C. Circuit, including Judges J. Skelly
Wright from Louisiana, David L. Bazelon from Illinois, Ruth Bader
Ginsburg from New York, and Warren E. Burger and George E. MacKinnon
from Minnesota.36 I hail from South Carolina, as does my colleague Judge
Karen LeCraft Henderson.37 Another of my colleagues, Judge Justin R.
Walker, calls Kentucky home.38 Living outside the beltway, we can offer a
different perspective on the potential impact of our decisions. That
perspective is complemented by the insights of the many judges in our court
who have served in the federal government. Among my current active
colleagues, Chief Judge Sri Srinivasan and Judges Patricia A. Millet,
Cornelia T.L. Pillard, Gregory G. Katsas, Florence Y. Pan, and Bradley N.
Garcia all served in the U.S. Department of Justice, whereas Judge Neomi
Rao served as the administrator of the Office of Information and Regulatory
Affairs.39
The D.C. Circuit’s jurisdiction is also distinct. Unlike other federal courts
of appeals, our geographic jurisdiction is limited to a single district court.
Nonetheless, Congress has extended the D.C. Circuit’s jurisdiction over a
variety of regulatory matters. Over 130 statutory provisions specifically
grant the D.C. Circuit jurisdiction.40 Slightly under half of all statutes
providing for judicial review of rulemaking give the D.C. Circuit exclusive
review jurisdiction.41 As a result, we often hear cases arising directly from
an administrative agency’s order or regulation. Although we are an appellate
court, when we hear petitions to review regulatory matters, we may be the
monopoly power in transporting commodities and could thus be exempt from certain transport
rate regulations).
36. Carl Tobias, The D.C. Circuit as a National Court, 48 U. MIA. L. REV. 159, 159
(1993).
37. See Karen LeCraft Henderson, U.S. CT. OF APPEALS FOR THE D.C. CIR., https://w
ww.cadc.uscourts.gov/content/karen-lecraft-henderson [https://perma.cc/SNQ9-QFGY] (last
visited Apr. 2, 2025).
38. See Justin R. Walker, U.S. CT. OF APPEALS FOR THE D.C. CIR., https://www.cadc
.uscourts.gov/content/justin-r-walker [https://perma.cc/HDC2-EVFV] (last visited Apr. 2,
2025).
39. Hammond, supra note 27, at 109–10.
40. Fraser et al., supra note 3, at 143.
41. Id. at 150–51.2025] A DISTINCTIVE COURT 1943
first Article III court to consider a party’s claims. And when we review
certain agency actions, our decisions may have nationwide implications.
Moreover, even where a statute does not give the D.C. Circuit exclusive
jurisdiction, litigants often choose to bring claims relating to administrative
matters before the D.C. Circuit.42
Our docket also reflects the D.C. Circuit’s unique functions. Relative to
other sibling circuits, our criminal docket is limited. Since 1970, Congress
devolved responsibility for purely local matters, including most issues in
criminal law, to the Superior Court of the District of Columbia and the
District of Columbia Court of Appeals.43 Of course, we continue to hear
cases in federal criminal law.44 In 2024, around 17 percent of our docket
included criminal cases.45 Comparatively, however, our docket leans more
heavily toward administrative law.46 In 2024, approximately 35 percent of
the cases we heard were challenges to agency actions, and about 23 percent
were civil cases in which the United States was a party.47
Although our cases may have nationwide implications, we remain an
appellate court. There is only one truly national court: the Supreme Court
of the United States. Our decisions are subject to review by the Supreme
Court. Reflecting the significance of our cases, the Supreme Court does seem
to grant a relatively greater number of certiorari petitions for decisions
coming from the D.C. Circuit. During the October Term 2023, the Supreme
Court granted certiorari on more D.C. Circuit cases (five) than every other
circuit except the larger Second Circuit (seven cases), U.S. Court of Appeals
for the Fifth Circuit (nine cases), and Ninth Circuit (eleven cases).48 Some
of the Supreme Court’s most notable decisions in administrative law
reviewed cases decided by the D.C. Circuit. In Vermont Yankee Nuclear
Power Corp. v. National Resources Defense Council, Inc.,49 for example, the
Supreme Court clarified the proper procedures that could be demanded from
42. Hammond, supra note 27, at 108.
43. MATTHEW D. TROUT & BARRY J. MCMILLION, CONG RSCH. SERV., IF12531, THE
DISTRICT OF COLUMBIA COURTS: A BRIEF INTRODUCTION 1–2 (2023).
44. See, e.g., United States v. Brown, 125 F.4th 1186 (D.C. Cir. 2025).
45. U.S. CTS., CASELOAD STATISTICS DATA TABLES, TABLE B-1: U.S. COURTS OF
APPEALS—CASES FILED, TERMINATED, AND PENDING, BY NATURE OF PROCEEDING—DURING
THE 12-MONTH PERIOD ENDING DECEMBER 31, 2024, https://www.uscourts.gov/data-news/d
ata-tables/2024/12/31/statistical-tables-federal-judiciary/b-1 [https://perma.cc/AD42-7NB2]
(last visited Apr. 2, 2025).
46. Id. I derived the figure for the percentage of challenges to agency actions from the
“Administrative Agency Appeals” variable in Table B-1. Id. The Administrative Office of the
U.S. Courts defines this variable as including “[a]ll petitions to review administrative agency
decisions and applications for enforcement.” U.S. CTS., FEDERAL COURT MANAGEMENT
STATISTICS, DECEMBER 2024, EXPLANATION OF JUDICIAL CASELOAD PROFILES: COURTS OF
APPEALS, https://www.uscourts.gov/data-news/reports/statistical-reports/federal-court-manag
ement-statistics/federal-court-management-statistics-december-2024 [https://perma.cc/Z9LH
-KWJJ] (last visited Apr. 2, 2025).
47. U.S. CTS., supra note 45.
48. October Term 2023, SCOTUSBLOG, https://www.scotusblog.com/case-files/terms/ot
2023/ [https://perma.cc/FV6N-23WF] (last visited Apr. 2, 2025).
49. 435 U.S. 519 (1978).1944 FORDHAM LAW REVIEW [Vol. 93
federal agencies conducting rulemaking, instructing us to claw back earlier
requirements.50
Although our docket leans heavily toward issues in administrative law, we
are neither a specialty court nor the only court that deals with regulatory
affairs. Significant D.C. Circuit cases have addressed issues outside of
administrative law, including in criminal procedure.51 Our role is different
than that of the U.S. Court of Appeals for the Federal Circuit, which has
jurisdiction over specific subject areas, including international trade,
government contracts, patents, trademarks, and veterans’ benefits.52 A few
statutes grant us exclusive jurisdiction over certain regulatory matters, but
other sibling circuits can also hear most cases that raise questions in
administrative law. Some of the Supreme Court’s most notable
administrative law cases in the October Term 2023 came from outside the
D.C. Circuit.53
In emphasizing the role of the D.C. Circuit as a national court, I do not
mean to minimize the significance of our cases reviewing issues specific to
the District of Columbia. Protecting the constitutional rights of D.C.
residents is one of our most important jobs. In the aftermath of the Supreme
Court’s decision in Bolling v. Sharpe,54 the D.C. Circuit was responsible for
supervising desegregation of the district’s public schools.55 The D.C. Circuit
also banned enforcement of racially restrictive covenants in the district.56
And as Judge Henry White Edgerton noted, dissenting in the last D.C. Circuit
case affirming the constitutionality of segregation, even in ruling on local
matters our court must keep in mind that we are deciding cases for “the
cosmopolitan capital of a nation that professes democracy.”57
III. A NATIONAL COURT BEYOND
ADMINISTRATIVE LAW
So far, I have focused primarily on the court’s regulatory docket as
evincing the nationwide importance of our rulings. But some of the court’s
most notable decisions with national implications address nonregulatory
issues like freedom of information, national security, and presidential power.
50. See id.
51. See, e.g., United States v. Maynard, 615 F.3d 544, 549 (D.C. Cir. 2010) (addressing
the constitutionality of prolonged GPS surveillance).
52. Court Jurisdiction, U.S. CT. OF APPEALS FOR THE FED. CIR., https://www.cafc.uscourts
.gov/home/the-court/about-the-court/court-jurisdiction/ [https://perma.cc/9AXR-EMT9] (last
visited Apr. 2, 2025).
53. See, e.g., Consumer Fin. Prot. Bureau v. Cmty. Fin. Servs. Ass’n of Am., 144 S. Ct.
1474 (2024) (on cert from the Fifth Circuit); Sec. & Exch. Comm’n v. Jarkesy, 144 S. Ct.
2117 (2024) (same); Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 144 S. Ct. 2440
(2024) (on cert from the U.S. Court of Appeals for the Eighth Circuit).
54. 347 U.S. 497 (1954).
55. See Smuck v. Hobson, 408 F.2d 175, 176–77 (D.C. Cir. 1969); Kelsey v. Weinberger,
498 F.2d 701, 703 (D.C. Cir. 1974).
56. Mayers v. Ridley, 465 F.2d 630, 630–31 (D.C. Cir. 1972).
57. Carr v. Corning, 182 F.2d 14, 33 (D.C. Cir. 1950) (Edgerton, J., dissenting).2025] A DISTINCTIVE COURT 1945
The D.C. Circuit has significantly shaped the law around freedom of
information. The Freedom of Information Act58 (FOIA) does not assign the
D.C. Circuit exclusive jurisdiction over challenges to an agency’s response
to a request for information.59 Nonetheless, because many federal agencies
are located in the capital, FOIA cases are commonly filed in the U.S. District
Court for the District of Columbia and reviewed by the D.C. Circuit. D.C.
Circuit decisions have defined the scope of FOIA: for example, discerning
whether certain entities within the White House are “agencies” under the
statute.60 A D.C. Circuit case first required an agency to produce a Vaughn
index,61 a detailed affidavit that lists every document that has been released
with redactions, identifies the redactions, and offers a justification for each
redaction.62
FOIA cases have also asked that we balance the interests of public
information and transparency with the need for secrecy around intelligence
operations.63 In Wolf v. CIA,64 we had to determine whether an agency can
refuse to confirm or deny the existence of certain records related to
intelligence matters.65 And in Morley v. CIA,66 where a journalist sought
records pertaining to a deceased Central Intelligence Agency (CIA) officer
as part of an investigation into the assassination of President John F.
Kennedy, we were asked to assess whether the CIA had properly responded
to a request for records.67
In one of the D.C. Circuit’s most notable decisions, United States v.
Washington Post Co.,68 we helped define the scope of protections afforded
by the First Amendment.69 The Washington Post had come into possession
of the “Pentagon Papers,” a cache of documents relating to U.S. policy in
Vietnam.70 The Government sought to enjoin publication of these papers,
claiming it would “prejudice the conduct of the Nation’s military efforts and
diplomatic relations.”71 Sitting en banc, we found that the Government failed
to establish that publication would gravely prejudice the interests of the
United States.72 The Supreme Court affirmed our decision, underscoring the
importance of close scrutiny of prior governmental restraints on speech.73
58. 5 U.S.C. § 552 (2018).
59. Id. § 552(a)(4)(B).
60. See, e.g., Jud. Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 211 (D.C. Cir. 2013).
61. Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. Cir. 1973).
62. Hall & Assocs. v. EPA, 956 F.3d 621, 627 n.2 (D.C. Cir. 2020).
63. See, e.g., Nat’l Sec. Couns. v. CIA, 969 F.3d 406 (D.C. Cir. 2020); Wilbur v. CIA,
355 F.3d 675 (D.C. Cir. 2004).
64. 473 F.3d 370 (D.C. Cir. 2007).
65. Id. at 372.
66. 508 F.3d 1108 (D.C. Cir. 2007).
67. Id. at 1113.
68. 446 F.2d 1322 (D.C. Cir. 1971).
69. See id.
70. Id. at 1323.
71. Id.
72. United States v. Washington Post Co., 446 F.2d 1327, 1328 (D.C. Cir.), aff’d sub nom.
N.Y. Times Co. v. United States, 403 U.S. 713 (1971).
73. N.Y. Times Co. v. United States, 403 U.S. 713, 713 (1971).1946 FORDHAM LAW REVIEW [Vol. 93
We also frequently hear cases involving matters of national security. In
the aftermath of 9/11, the D.C. Circuit reviewed petitions for habeas corpus
brought by noncitizens detained as enemy combatants in Guantanamo Bay.74
Two years ago, we went en banc to weigh a claim raised by a Guantanamo
Bay detainee that his due process rights were violated by a district court
reviewing the appellant’s petition for habeas corpus.75 More recently, in
TikTok Inc. v. Garland,76 we were asked to determine whether Congress
could permissibly require that “[a] popular social-media platform, subject to
the control of a foreign adversary nation . . . be divested because of national
security risks.”77 Under the Protecting Americans from Foreign Adversary
Controlled Applications Act,78 (the “Act”) it is unlawful for any entity to
provide certain services to distribute, maintain, or update a foreign adversary
controlled application in the United States.79 The Act designated any
application that is operated, directly or indirectly, by TikTok as a foreign
adversary controlled application.80 TikTok challenged the constitutionality
of the statute. We heard this case because Congress specifically granted the
D.C. Circuit exclusive jurisdiction to review claims under the Act.81
Cases that ask us to determine the scope of presidential power are
particularly consequential. Such cases may involve a challenge to the
validity of an executive order. Consider, for example, Youngstown Sheet &
Tube Co. v. Sawyer,82 one of the seminal Supreme Court cases on presidential
power. In 1951, a dispute arose between steel companies and their
employees over terms and conditions to be included in their new collective
bargaining agreements.83 Frustrated with limited progress in the relevant
negotiations, in 1952, the United Steelworkers called for a general strike.84
In the midst of the Korean War, and concerned that a work stoppage would
jeopardize national defense, President Harry S. Truman issued Executive
Order 10340, instructing the secretary of commerce to take possession of
most steel mills and keep them running.85 Steel companies sought relief
before the District Court for the District of Columbia, which granted an
injunction that we later reversed fearing the implications of a work stoppage
74. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), rev’d and remanded, 553 U.S.
723 (2008); Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), rev’d and remanded, 548
U.S. 557 (2006); Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), rev’d and
remanded sub nom. Rasul v. Bush, 542 U.S. 466 (2004).
75. Al-Hela v. Biden, 66 F.4th 217, 219–20 (D.C. Cir. 2023) (en banc).
76. 122 F.4th 930, 948 (D.C. Cir. 2024), aff’d, 145 S. Ct. 57 (2025).
77. Id.
78. Pub. L. No. 118-50, 138 Stat. 955 (2024) (codified as amended in scattered titles and
sections of the U.S. Code).
79. 15 U.S.C. § 9901(a)(1)(A) (2024).
80. Id. § 9901(g)(3).
81. Id. § 9901(b).
82. 343 U.S. 579 (1952).
83. Id. at 571–72.
84. Id.
85. Id.2025] A DISTINCTIVE COURT 1947
for national security.86 In resolving Youngstown, D.C. courts were asked to
balance the need for swift executive action to address an impending crisis
with the responsibility to preserve the separation of powers. We have also
been asked to clarify the relationship between the president, Congress, and
the judiciary. In Nixon v. Siricia,87 for example, we had to determine whether
a president could decline to respond to a grand jury subpoena to produce
certain records.88 The D.C. Circuit upheld an order by the district court
instructing President Richard M. Nixon to turn over tape recordings of certain
White House meetings and phone conversations between President Nixon
and his advisors.89 These cases illustrate the D.C. Circuit’s critical role in
preserving the separation of powers and the rule of law.
IV. A COURT IN HISTORY
Perhaps an overlooked aspect of our court and its docket is how frequently
we engage with history. Given the D.C. Circuit’s focus on regulations, I have
not been surprised by how much time I spend going through toxicology
studies. I am more intrigued, however, by how often I think about cases from
a historical perspective. As we are bound by precedent, for example, we
discern how our court has previously ruled on relevant cases. At times,
reviewing the record for a case may require that we revisit a historical
archive. And in other situations, history may shed light on a question of law,
like the meaning of a constitutional provision. Most challenging, however,
are those times when I find myself reflecting on the role of our court in our
nation’s history, and the impact our decisions have on the nation’s future.
Take, for example, Simon v. Republic of Hungary,90 a recent case
examining claims by Holocaust survivors against Hungary. At its core, the
case asked whether Holocaust survivors and their descendants could invoke
the Foreign Sovereign Immunities Act’s91 exception to sovereign immunity
for expropriations as a means to pierce through Hungary’s sovereign
immunity and bring claims against that foreign state.92 I was struck by the
cross-generational significance of the case. The Simon litigation has been
ongoing for more than a decade.93 Many of the would-be plaintiffs have died
since the atrocities of the Holocaust. The atrocities took place now over half
a century ago, and yet generations later, we continue to reckon with that past.
As my colleague Judge Pillard and I reflected at the end of the majority
opinion, in adjudicating cases for past harms: “We are also checked by the
86. Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 569 (D.D.C.), aff’d, 343 U.S.
579 (1952); Sawyer v. U.S. Steel Co., 197 F.2d 582 (D.C. Cir. 1952).
87. 487 F.2d 700 (D.C. Cir. 1973).
88. Id. at 704.
89. Id.
90. 77 F.4th 1077 (D.C. Cir. 2023), rev’d, No. 23-867, 2025 WL 567336 (U.S. Feb. 21,
2025).
91. Pub. L. No. 94-583, 90 Stat. 2891 (1976) (codified as amended in scattered sections
of 28 U.S.C.).
92. Simon, 77 F.4th at 1088.
93. Id. at 1091.1948 FORDHAM LAW REVIEW [Vol. 93
reality that even the best remedies a court can provide for past harms are, by
their nature, profoundly inadequate.”94
Or consider Citizens for Constitutional Integrity v. Census Bureau.95
Section 2 of the Fourteenth Amendment96 specifies that seats in the House
of Representatives “shall be apportioned among the several States according
to their respective numbers . . . .” The Fourteenth Amendment’s Reduction
Clause also provides that the “basis of representation” for the apportionment
of representatives to any state “shall be reduced” proportionally “when the
right to vote at any election . . . is denied to any of the male inhabitants of
such State, being twenty-one years of age, and citizens of the United States,
or in any way abridged . . . .”97 A voting rights organization brought action
against the U.S. Census Bureau alleging that it had failed to consider whether
the Reduction Clause required a variation to the allotment of congressional
seats, otherwise provided by the most recent census.98 We concluded that
plaintiffs had not established standing to bring their claims.99 In a mindful
concurrence, however, my colleague Judge Robert L. Wilkins highlighted
the historical significance of the plaintiffs’ claims. The Fourteenth
Amendment was adopted in 1868. Since then, as Judge Wilkins notes,
“[W]hile several other amendments to the Constitution have been robustly
enforced, members of Congress and agency officials have undertaken . . .
few actions to implement the Amendment’s Reduction Clause . . . .”100 Of
course, we can only resolve injuries in fact, but in reviewing cases, we can
be struck by the enduring challenges our nation and our courts continue to
face.
In deciding particularly significant cases, I have also found myself
reflecting on the future implications of our rulings. As my colleague from
the U.S. Court of Appeals for the First Circuit Chief Judge David J. Barron
has noted, “[J]udges at all levels of the judicial system are quite aware that if
the stakes of a case are high enough, history may come to judge their decision
harshly.”101 This is inevitably true in any dispute that involves the powers
of the president. Though our decisions primarily impact parties specific to
the case, they also shape the presidency as an institution, long into the future.
Although actions challenging the scope of President Nixon’s official
immunity may have most directly affected President Nixon, we continue to
turn to them, along with other historical decisions like Marbury v.
Madison,102 for clarifying presidential immunity today.103 And our decisions
today will no doubt also have an impact tomorrow.
94. Id. at 1124.
95. 115 F.4th 618 (D.C. Cir. 2024).
96. U.S. CONST. AMEND. XIV, § 2.
97. Id.
98. Citizens for Const. Integrity, 115 F.4th at 621.
99. Id.
100. Id. at 630 (Wilkins, J., concurring).
101. David Barron, The Court of History, 98 N.Y.U. L. REV. 683, 685 (2023).
102. 5 U.S. (1 Cranch) 137 (1803).
103. See, e.g., United States v. Trump, 91 F.4th 1173, 1183 (D.C. Cir.), vacated and
remanded, 603 U.S. 593 (2024).2025] A DISTINCTIVE COURT 1949
Thinking about the past and reflecting on the future requires that we
embrace one of the greatest virtues of judicial temperament: humility. We
may look to the past and reflect on the future, knowing there are some
questions we cannot and should not answer, and striving to answer as best as
we can the significant questions that we must resolve. I, for one, take comfort
in the endurance of our institutions. Even as the times and circumstances
have changed, our court has remained, and will remain, steadfast in
protecting the rule of law.
V. A COURT FOR THE FUTURE
In a speech eight years into her term on the D.C. Circuit, Chief Judge
Patricia Wald reflected that “the most prominent impression” she had so far
was “change.”104 Judge Wald noted that, at the time, “[w]e in the D.C.
Circuit are passing through a period of change: from one generation of
judges to another; from one way of processing cases to another; to an as yet
undetermined degree, from one body of precedent to another.”105 Judge
Wald could have been saying those same words today. A majority of the
active judges in our court have been appointed in the last ten years. The
pandemic brought about changes to how we run oral argument. And recent
cases have brought emerging questions to administrative law doctrine.
I would probably be remiss to conclude without noting the Supreme
Court’s recent ruling in Loper Bright Enterprises v. Raimondo.106 Under the
doctrine from Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc.,107 courts had long deferred to an agency’s interpretation of ambiguous
statutes, as long as the interpretation was not arbitrary and capricious.108
Loper Bright overruled Chevron, finding that “[c]ourts must exercise their
independent judgment in deciding whether an agency has acted within its
statutory authority.”109 Instead, the Supreme Court instructed us to apply
traditional tools of statutory interpretation to discern what Congress said in a
given statutory provision. Applying this framework, inevitably, will raise
new issues.
Nonetheless, I think it important to stress the capacity of the courts,
particularly the D.C. Circuit, to adapt to change. Even in the midst of change,
our institutions remain steadfast in our commitment to justice and the rule of
law. Judge Wald concluded her speech by citing a prior speech by her
predecessor, Judge E. Barrett Prettyman, for whom our main building is
named. In the spirit of stare decisis, I will also turn to his remarks: “No
matter how violent our intellectual and philosophical differences, all my
brethren have a vigorous, aggressive, almost a belligerent ambition that the
104. Patricia M. Wald, The D.C. Circuit: Here and Now, 55 GEO. WASH. L. REV. 718, 718
(1987).
105. Id. at 728.
106. 144 S. Ct. 2244 (2024).
107. 467 U.S. 837 (1984), overruled by Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244
(2024).
108. Id.
109. Loper Bright, 144 S. Ct. at 2262.1950 FORDHAM LAW REVIEW [Vol. 93
judicial work of our court be the best—indeed far and away the best—of any
appellate court in the country.”110 This, I submit to you, is what makes the
D.C. Circuit so special: a court for the nation, seeking to ensure that we do
the best by our nation, cognizant of our past, and ready for the challenges of
the future.
110. E. Barrett Prettyman, Duties of a Circuit Chief Judge, 46 A.B.A. J. 633, 634 (1960).
