Should you be disappointed if your child doesn’t get admitted to Harvard or Yale? Yes and no.
Yes. Your child will not become a Supreme Court justice or work at certain white-shoe law firms. Your child will miss out on the valuable connections these schools offer. Your child will endure a lifetime of backhanded insults from their graduates: “Oh, that’s a good school.”
No. Your child can get a perfectly good education at other schools and have a perfectly satisfying career. Merit admissions account for a third or less of the classes at elite schools, which were historically rich kids’ finishing schools. Those admitted on merit are often patronized on their socially stratified campuses: “You must be smart.” If you’re a legacy and your child wasn’t admitted, you didn’t write a large enough check. Around here, we wish Lori Loughlin had gone to trial.
Supreme Court justices are going to decide whether Harvard, the alma mater of half of them, should be permitted to continue admissions policies that historically were begun there (Students for Fair Admissions Inc. v. President and Fellows of Harvard College, No. 20-1199). The University of North Carolina is fighting a joined case, which will be argued in October (Students for Fair Admissions Inc. v. University of North Carolina, No. 21-707). The Harvard justices should recuse themselves from these cases, but they won’t.
Which brings us to Supreme Court nominee Judge Ketanji Brown Jackson of the D.C. Circuit, who is being asked to recuse herself not because she attended Harvard (both undergraduate and law), but because she has been a member of the Harvard Board of Overseers, which advises the administration on admissions policies, since 2016. When she joined the Board of Overseers, Jackson declined to state her view on race-based admissions. As a district court judge, she recused herself from a couple of cases about university policies. If she were to recuse herself, the Court would decide the admissions cases with eight justices.
Jackson is accused of being a Democratic activist. It’s the Democrats’ seat to fill, and judicial activism is not confined to one party. Dark-money group Demand Justice hounded Justice Stephen G. Breyer (Harvard), for whom Jackson served as a law clerk, into retirement. The Biden administration sealed the deal by announcing his retirement before he did.
Oh, but Chief Justice John G. Roberts Jr. (Harvard) says that there are no red or blue justices! That’s nonsense and always has been, and he knows it. The Court has always been political. Historically, many justices were owed political favors by the presidents who nominated them. Indeed, we’re reminded of Sen. Roman Hruska’s remark, when the American Bar Association called a pair of Nixon nominees mediocre, that the mediocre need representation too.
Justice Elena Kagan (Harvard) was not even a judge when she was nominated. Now, employers know that elite law schools train their graduates to be appellate judges. They don’t train them to be trial lawyers, trial judges, business planners, wealth advisers, or any of the myriad other practical jobs that lawyers do. Jackson, who has been an appellate judge only since June 2021, has done several of these regular lawyer jobs. She was an appellate public defender in the federal court for three years and sat on the D.C. federal district court for seven years. She was also an assistant special counsel to the United States Sentencing Commission.
Is Jackson’s extensive practical experience relevant? Although the Supreme Court is not a fact-finder, trial experience could be valuable. Bad factual records do make bad law. Some important cases have come to the Court with poorly developed factual records, like the Vietnam-era black armbands in high school case (Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)). Readers will recall that the Court was factually clueless in more than one important tax case (Arkansas Best v. Commissioner, 485 U.S. 212, 222 (1988), and Frank Lyon Co. v. United States, 435 U.S. 561 (1978)). If a Justice Jackson sat up and said, “Really, counsel, is that plausible?” during oral argument, that would not be a bad thing.
At her confirmation hearing for the D.C. Circuit, Jackson said she did not have experience with “the living Constitution” legal philosophy — that is, whether judges can freely interpret the Constitution to endorse contemporary socioeconomic theories and even define new rights. Not only is the D.C. Circuit the farm team for Supreme Court justices, because the really interesting constitutional and regulatory questions come to it, but it is also ground zero for lawfare.
At her district court confirmation, Jackson answered the same question by saying that she would be “bound by the methods of constitutional interpretation that the Supreme Court has adopted, and I have a duty not to opine on the Supreme Court’s chosen methodology or suggest that I would undertake to interpret the text of the Constitution in any manner other than as the Supreme Court has directed.”
If she didn’t believe in the living Constitution, Demand Justice wouldn’t want her on the Court in preference to other qualified appellate judges against whom it campaigned. “The confirmation process is designed to guarantee that we do not have wink-and-a-nod nominations where agendas are to be fulfilled but not discussed,” Jonathan Turley of George Washington University Law School argued about her refusal to address questions about judicial philosophy (The Hill, Feb. 26, 2022).
Jackson will be confirmed. She is related by marriage to former House Speaker and Ways and Means Committee Chair Paul Ryan, who sang her praises, as did Senate Minority Leader Mitch McConnell, R-Ky. Senate Democrats are in a hurry, with Senate Judiciary Committee Chair Richard J. Durbin, D-Ill., wanting to complete hearings between March 21 and 24, with a floor vote before April 11. Committee member Lindsey Graham, R-S.C., who normally takes the position that a president is entitled to his nominees, will probably vote no on Jackson. Ranking minority member Chuck Grassley, R-Iowa, who opposed her nomination to the D.C. Circuit, wants to slow down.
“Vetting a nominee for a lifetime appointment to the high court is serious business. The American people rightly expect a full and thorough vetting process. We should not sacrifice the integrity of our constitutional advice and consent responsibility to meet an arbitrary timeline. The Court’s next term doesn’t begin until October, so there’s absolutely no need to rush,” Grassley said in a statement. But the confirmation of Justice Amy Coney Barrett was also rushed.
This article analyzes Jackson’s judicial record. Once again, as with the last four Supreme Court nominees, the real issue is administrative law. Can the government expand through administrative rulemaking? Or is enhancement of substantive rules the exclusive province of the legislature? That is highly pertinent to our readers, for whom administrative rulemaking is as or more important than statutory law. Many of the subjects Jackson considered as a federal district judge are controversial, like illegal immigration, but the legal issues are the same administrative procedure issues that our readers face when challenging tax regulations.
Jurisdiction
A hallmark of judicial activism is assertion of jurisdiction when the court does not have it.
As a district judge, Jackson wrote an opinion about forcing a former Trump White House counsel to testify before Congress. The House Judiciary Committee was trying to compel former White House counsel Donald F. McGahn II to testify in the Russiagate hearings. Arguing against Marbury v. Madison itself, the White House claimed absolute testimonial immunity and was even resisting federal court subject matter jurisdiction. Jackson held that the committee could invoke federal judicial process to compel testimony and reaffirmed Supreme Court precedent that there is no absolute testimonial immunity for the president’s employees (Committee on the Judiciary of the United States House of Representatives v. McGahn, Civ. No. 19-cv-2379 (D.D.C. Nov. 25, 2019)).
It was primarily a jurisdiction case, but Jackson couldn’t resist some colorful rhetorical flourishes along the way. “Presidents are not kings. . . . This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States,” she wrote about the absolute immunity claim, in a lengthy opinion that did not touch executive privilege for the content of any testimony.
The Trump administration wanted to treat federal employees the way private sector employers treat their employees, and unions challenged those efforts in the D.C. federal district court. Here it should be noted that government employees at all levels of government are the last remaining heavily unionized sector. Federal employees have bargaining rights by statute, which is administered by the Federal Labor Relations Authority (5 U.S.C. section 7103).
Jackson was unanimously reversed by the D.C. Circuit in her decision to enjoin implementation of three executive orders imposing restrictions on collective bargaining by federal employees, most notably to make it easier to fire them for misconduct or underperformance. The unions argued that the president had no authority for the orders, which violated the Constitution and the collective bargaining statute. On cross-motions for summary judgment, she held that the unions’ claims are not “of the type” Congress intended for administrative review, and that the orders violated the statute (American Federation of Government Employees, AFL-CIO v. Trump, No. 1:18-cv-1261 (D.D.C. Aug. 25, 2018)).
In what was seen as a huge victory for unions, Jackson deployed some lofty rhetoric in her decision on the merits: “This Court has no doubt that the net effect of these provisions is to put an entire hand on the scale with respect to certain negotiable provisions of a collective bargaining agreement before negotiations even begin (never mind the thumb), and to require agency negotiators to cut off any digits that union representatives might seek to extend in the hopes of reaching an agreement on these particular issues.”
The D.C. Circuit held that the district court lacked subject matter jurisdiction because the unions could not bypass administrative review. The underlying statute requires exhaustion of remedies at the agency level before judicial review can be sought, even though the unions could not obtain pre-implementation relief at the agency level. Moreover, any constitutional claims could be handled on appeal from an agency decision. Jackson’s decision was also inconsistent with Supreme Court precedent to that effect (Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994)). (American Federation of Government Employees, AFL-CIO v. Trump, No. 18-5289 (D.C. Cir. July 16, 2019).)
When the border wall was being built, the Department of Homeland Security had to waive application of two dozen wildlife protection laws to get construction done. So several wildlife protection groups went to court to challenge DHS authority for these broad waivers. Granting summary judgment to DHS, Jackson held that the court lacked subject matter jurisdiction because Congress had expressly precluded all nonconstitutional challenges to waivers of any laws that got in the way of the wall in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208. (Center for Biological Diversity v. McAleenan, 404 F. Supp.3d 218 (D.D.C. 2019), cert. denied, No. 19-975 (June 29, 2020).)
Coal River Mountain Watch mounted a federal law challenge to the validity of an unused West Virginia mining permit. CRMW asked the state government to declare the permit automatically terminated after three years of nonuse under federal law. The state declined, so CRMW went to the Interior Department regional field office, which agreed that the state had an arbitrary and capricious policy. The state extended the permit and asked for a review by the national Interior Office of Surface Mining, which reversed the decision. OSM determined that the state’s policy of notifying permit holders and permitting renewal was permissible and reasonable, even though the statute says that unused permits “shall” be terminated (30 U.S.C. section 1256). (Coal River Mountain Watch v. U.S. Dept. of the Interior, 146 F. Supp.3d 17 (D.D.C. 2015).)
CRMW went to two federal courts to argue that the OSM reversal violated notice and comment procedures under the Administrative Procedure Act (APA) (5 U.S.C. sections 553, 706). CRMW moved to voluntarily dismiss its parallel case in federal district court in West Virginia. Interior moved to dismiss CRMW’s D.C. district court case, arguing that equity favored West Virginia district court. Jackson concluded that her court should retain jurisdiction regardless of the statute requiring adjudication in the district where the mine was located, while national mining rules go to the D.C. district (30 U.S.C. section 1276). She characterized the statute as a mere forum rule, and asserted generalized federal question jurisdiction over the APA claims (28 U.S.C. section 1331).
Arbitrary and Capricious
The arbitrary and capricious standard accords no deference to agency expertise.
According to Supreme Court precedent, a court must not disturb the agency interpretation unless it is “arbitrary or capricious in substance, or manifestly contrary to the statute” (Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984)). Under the APA, not being arbitrary and capricious is just one among several factors that an agency interpretation must meet (5 U.S.C. section 706(2)).
The arbitrary and capricious standard asks whether the agency engaged in reasoned decision-making. The court is not supposed to substitute its own judgment (Motor Vehicle Manufacturers Association v. State Farm Mutual Insurance Co., 463 U.S. 29 (1983)). The Supreme Court described the standard in State Farm, which involved a rescission of a previous regulation:
Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
How much detail is required? State Farm says the agency has to justify doing more than nothing. The leading case on how fully agencies must explain and justify changes in their policies does not require greater scrutiny for an agency reversal of previous policy than would be required for introduction of a policy. The case concerned sporadic swearing on television (FCC v. Fox Television Stations Inc., 556 U.S. 502 (2009)).
Arbitrary and capricious is a malleable standard. “Those words, of course, are not self-defining. They have an ‘eye of the beholder’ quality. Thus, what’s critical in a practical sense is the spirit in which a court applies that bare statutory language,” said Steve R. Johnson of Florida State University College of Law. “Depending on whether the judge hearing the case likes or dislikes the content of the agency’s rule, the ‘arbitrary and capricious’ language could be treated as a shield to protect the agency action or as a sword with which to attack it.”
As an appellate judge, Jackson participated in three decisions and wrote two opinions. The opinion that most concerns our readers is an agency authority case decided only a month ago. The case concerned an administrative change in the threshold for when collective bargaining is required for federal employees (American Federation of Government Employees, AFL-CIO v. Federal Labor Relations Authority, No. 20-1396 (D.C. Cir. Feb. 1, 2022)).
Federal unions challenged the FLRA about bargaining over working conditions. From 1978 to 1985, FLRA guidance said that workplace changes had to be subject to collective bargaining if they had a more than de minimis effect on working conditions. Then in September 2020, the FLRA raised the threshold for collective bargaining to a substantial effect on working conditions — the pre-1985 threshold — at the behest of the departments of Education and Agriculture. The federal employees’ unions howled that the change was inconsistent with the statute and also arbitrary and capricious.
Jackson agreed with the unions that the new interpretation was insufficiently explained, and therefore arbitrary and capricious under the APA. The FLRA had adopted the new standard in a four-page policy statement without soliciting public comment. In the private sector, the National Labor Relations Board threshold for bargaining is substantial impact. This case was primarily governed by a lot of federal employee labor law precedent.
Jackson put the arbitrary and capricious analysis before the statutory analysis in her opinion. She concluded that she did not need to reach the unions’ argument that the FLRA interpretation was inconsistent with the governing statute. The FLRA argued that the de minimis standard was a time sink in that it essentially subjected every workplace change to collective bargaining, such that misapplication had drained the standard of meaning. But it was also unpredictable, and the FLRA cited instances of office reassignments when bargaining was not triggered.
Commenting that the FLRA arguments were inconsistent, Jackson held that the FLRA hadn’t sufficiently explained what was wrong with the de minimis standard. “Far from demonstrating the de minimis standard is unworkable, the FLRA’s policy statement simply appears to demonstrate how it works,” she wrote. She accused the FLRA of failing to explain the relative administrability of the two standards in the form of a comparative analysis. She argued that both standards could be equally fact-dependent and subject to disagreement.
Jackson was reluctant to discard 35 years of the de minimis standard, noting that the FLRA itself said in 1985 that it appropriately balanced labor rights and government efficiency. The D.C. Circuit appears to favor the de minimis standard as a matter of law and statutory interpretation (Association of Administrative Law Judges v. Federal Labor Relations Authority, 397 F.3d 957 (D.C. Cir. 2005)).
The FLRA asked for heightened deference for its determination that the substantial impact standard would be more predictable and more meaningful. Jackson responded that there is “nothing technical” about this determination that a judge wouldn’t be capable of evaluating. She rejected the FLRA’s argument that the public sector necessarily should have a narrower range for bargaining than the private sector because the former can’t bargain over wages and hours. The FLRA previously thought that difference justified the de minimis standard, she noted.
“There isn’t enough evidence yet to be sure, but Judge Ketanji Brown Jackson might be an arbitrary and capricious ‘hawk’ — that is a judge inclined to hold the agency to a high standard of explanation and justification,” Johnson commented, citing the two AFGE decisions. “Her strong opinion in the 2022 case may have reflected a belief (which, if she had it, I share) that the agency’s change of regulation was less about its purported purpose of achieving greater predictability of outcomes than about an unacknowledged desire to curb collective bargaining.”
Jackson afforded a high degree of deference to the FDA when it approved a generic gout flare prevention drug over the objections of the holders of the patent on the original drug, without notifying them as statutorily required. The patent holders griped that the FDA’s approval of the generic without reference to the original drug and certification of their patent was arbitrary and capricious (21 U.S.C. section 355(b)(2)(A), 21 C.F.R. section 314.54). The patent holders, which brought an unsuccessful infringement action, also griped about the lack of safety information on the generic (Takeda Pharmaceuticals Inc. v. Burwell, 78 F. Supp. 3d 65 (D.D.C. 2015), affirmed in part and dismissed in part per curiam, No. 15-5201 (D.C. Cir. July 15, 2016)).
On cross-motions for summary judgment, the court agreed with the generic maker that no statute, regulation, or policy required the FDA to reject the application for these procedural deficiencies. The failure to reference the original drug did not prevent the FDA from relying on the patent holders’ previously submitted safety and effectiveness data to make a scientific determination to approve the generic, Jackson concluded. That is, the prior submission constitutes waiver, so the FDA does not have to get permission from the patent holders to consult their data in another application process. Jackson understood that the purpose of the underlying statute was to encourage generics with notice to the patent holders. She was satisfied with the FDA’s analysis of the safety data.
Environmental advocacy groups sued the EPA to prod it to issue rules under the Clean Air Act to set emissions standards for nine pollutants (42 U.S.C. section 7604(a)(2)). Courts can set deadlines, and the EPA must demonstrate impossibility to be excused from them (NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1974)). Admitting that it was dilatory and citing lack of resources, the EPA wanted seven years to comply and the plaintiffs wanted two. On cross-motions for summary judgment, Jackson ordered the EPA to issue rules in three and a half years, and hers was one of several court orders to that effect. The EPA proposed some of the required air pollution regulations last fall (Community-in-Power and Development Association v. Pruitt, 304 F. Supp. 3d 212 (D.D.C. 2018)).
As a district judge, Jackson blocked expedited removal of some unauthorized aliens. The question was whether U.S. Immigration and Customs Enforcement arbitrarily expanded the fast-track process to aliens who had been in the country for longer periods without complying with the APA. Jackson deemed the expansion of removal authority to have been arbitrary and capricious, emphasizing the impact on aliens who had lived in the United States for years. The decision was reversed by the D.C. Circuit, because the underlying statute gave the agency unreviewable discretion over removals (Make the Road New York v. McAleenan (Sept. 27, 2019), reversed on other grounds, Make the Road New York v. Wolf, 962 F.3d 612 (D.C. Cir. 2020)).
Thus chastened, Jackson allowed the government to prevail in a case about the transit rule for processing asylum seekers. Once across the border, even illegally, noncitizens have some procedural rights (8 U.S.C. section 1229). Detention of asylum seekers is statutorily required (8 U.S.C. section 1225). The transit rule required immigration officers to deport putative asylum seekers who had passed through other countries without seeking asylum there first. Immigration advocates complained that transit rule detention procedures were adopted in an arbitrary and capricious fashion and violated asylum seekers’ procedural rights (Las Americas Immigrant Advocacy Center v. Wolf, 507 F. Supp.3d 1 (D.D.C. 2020), appealed, No. 20-5386 (D.C. Cir. 2022).
Jackson dismissed DHS’s arguments about jurisdiction, but upheld transit rule implementation as not violating either the APA or due process. The statute says that plaintiffs can complain about DHS actions being inconsistent with the statute (8 U.S.C. section 1252). Jackson held that this apparent limitation did not preclude APA review of DHS procedures (5 U.S.C. section 704). Thus she retained jurisdiction for a procedural case even though the DHS action was not inconsistent with the expedited removal statute. The credible-fear-of-persecution interview was meant to be a mere initial screening assessment.
Jackson applied the hard-look analysis of State Farm to DHS transit rule detention procedures, finding that the agency examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made. The immigration advocates wanted better detention conditions and access to counseling during the initial sorting process, but DHS had a statutorily valid goal of more efficient processing of noncitizens not entitled to asylum.
Congress makes the laws, and delineates federal court jurisdiction and the scope of judicial review of nonconstitutional questions about them. Federal courts don’t make the rules about which cases they are allowed to hear or which administrative processes they can review. Jackson writes long, meticulously detailed opinions. She doesn’t hide the ball about what she is doing. She’s asserting jurisdiction and using procedural rules to reverse agency decisions on controversial issues in ways that Congress may not have intended.
“The important question for tax is whether, on the Supreme Court, the new justice would be similarly inclined to look through Treasury/IRS’s formal actions and explanations in order to consider perhaps underlying motivations,” Johnson speculated.