Bacon's Rebellion

Democracy Thrives in Sunlight

Richmond’s 4th Circuit Court of Appeals Needs Better Judgment

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by

sherlockj
in

The 4th U.S. Circuit Court of Appeals in Richmond, Va. Acroterion/Wikipedia

by James C. Sherlock

Federal judges are supposed to call balls and strikes in relation to the Constitution and the law.

President Biden signed the Fiscal Responsibility Act into law on June 3.  Sec 324 of that law, Expediting Completion Of The Mountain Valley Pipeline,

  1. blocked any court from hearing cases about permits for the pipeline; and
  2. gave to the D.C. Circuit Court of Appeals jurisdiction over any other cases about that pipeline or about the law itself.

Judging federal agency decision cases is a traditional role for the D.C. Circuit Court of Appeals.

The 4th U.S. Circuit in Richmond, soon after the law was signed in Mountain Valley Pipeline, Llc V. Wilderness Society, Et Al. violated both key Sec. 324 provisions.

The Fourth Circuit had for years assumed for itself the role of federal and state regulator for pipelines in Virginia and wasn’t going to surrender that authority.

Having already multiple times rejected permits granted to the Mountain Valley and Atlantic Coast pipelines by the U.S. Fish and Wildlife Service and Corps of Engineers, among other federal and state agencies, it decided on July 10th and 11th to block construction once again while it reviewed challenges to yet more permits.

The Supreme Court overturned the decision very quickly and unanimously.

That was not an anomaly. The Conservative-Liberal split on the Supreme Court is 6-3.  Supreme Court rejections of 4th Circuit actions unanimously, 8-1 or 7-2, are becoming all too common.

Having Virginia federal court decisions at the mercy of that Circuit means that plaintiffs and defendants from Virginia and other 4th Circuit states are at risk, at least for delays, in receiving justice.

Congress has reset the federal judiciary system before. See as example the Federal Courts Improvement Act of 1982.

The July decisions by the 4th Circuit, which multiple times previously had rejected the executive branch’s permitting judgments, in doing so accepted a plea from environmental groups that the new law passed by Congress and signed by the President was unconstitutional.

From the 4th Circuit’s Judge James Wynn Jr.

Where’s the limit on that?

Congress can intervene on any type of case we have and take away jurisdiction and that’s the end of it?

Answer: not in “any” type of case, Judge, but a unanimous Supreme Court said it could in this one.

Supreme Court supermajority reversals of the Fourth Circuit

2022-2023 term
Dupree v. Younger. Unanimously vacated and remanded
Mountain Valley Pipeline, Llc V. Wilderness Society, Et Al. reversed unanimously

2021-22 term
Berger v. North Carolina State Conference of the NAACP – reversed 8-1
Siegel v. Fitzgerald – reversed 9-0

2020-21 Term
BP P.L.C. v. Mayor and City Council of Baltimore vacated and remanded 7-1
United States v. Gary reversed 8-1

2019-20 term
United States Forest Service v. Cowpasture River Preservation Association reversed and remanded 7-2

Those overwhelming rejections do not represent differences in political opinions, but rather differences in jurisprudence.

The 4th Circuit appears too often to get the theory of law, and of their jobs, wrong.

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30 responses to “Richmond’s 4th Circuit Court of Appeals Needs Better Judgment”

  1. Nathan Avatar
    Nathan

    “Having Virginia federal court decisions at the mercy of that Circuit means that plaintiffs and defendants from Virginia and other 4th Circuit states are at risk, at least for delays, in receiving justice.”

    It’s much worse than that. A tiny fraction of lower court decisions are heard by the Supreme Court. If the 4th Circuit Court of Appeals is incompetent, the vast majority of their mistakes will never be corrected.

  2. walter smith Avatar
    walter smith

    So, the 9th Circus is dead?
    Long live the 4th Circus!

  3. Nancy Naive Avatar
    Nancy Naive

    https://uploads.disquscdn.com/images/3461c192d6bf8cdb0dbb7bb48a5448ae5d23f2759718bbabfac2326800aff321.jpg

  4. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    This article takes too narrow a view of the relationship between circuit courts and the Supreme Court.

    First, it is not surprising that several cases from the Fourth Circuit have been overturned. The Supreme Court can pick and choose which cases it hears. It takes the votes of at least four Justices for the Court to accept a case on appeal. Given the presence of six conservative Justices on the Supreme Court, one would expect those Justices to be on the look-out for cases whose decisions they questioned and grant them certiorari.

    Second, the article overlooks, or ignores, those decisions of the Fourth Circuit that are appealed to the Supreme Court that the Court declines to take up, thus letting the Fourth Circuit decision stand. For example, there have been two recent such decisions that relate to a topic much discussed on Bacon’s Rebellion. In its 2022 decision in Williams v. Kincaid, the Fourth Circuit became the first circuit court to find that the Americans with Disabilities Act (ADA) and the Rehabilitation Act protect individuals with gender dysphoria. The case was appealed to the U.S. Supreme Court. On June 30, 2023, the Supreme Court, on a vote of 7-2, declined to take it up.

    In a similar case (West Virginia v. B.P.J) and related to the much-discussed ability of transgender youth to participate in athletic events corresponding to the gender with which they identify, the Fourth Circuit this year temporarily blocked a West Virginia law that bars transgender girls from playing on girls’ sports teams in public secondary schools and colleges while a challenge to the law continues in the lower courts. The state asked the Supreme Court to block the Fourth Circuit’s order. With two Justices dissenting, the Supreme Court denied the state’s request, thereby allowing transgender girls to compete on girls’ sports teams while the case is being heard.

    https://www.littler.com/publication-press/publication/fourth-circuit-first-rule-ada-protects-gender-dysphoria

    https://www.supremecourt.gov/opinions/22pdf/22-633_1cok.pdf

    https://www.scotusblog.com/2023/06/does-the-americans-with-disabilities-act-cover-gender-dysphoria/

    1. Nancy Naive Avatar
      Nancy Naive

      When he can pick his patients, a doctor will appear to be a veritable miracle worker, maybe even god-like. There’s an argument for avoiding doctors with too high of a success rate.

    2. Eric the half a troll Avatar
      Eric the half a troll

      Cherry-picking on BR? Say it ain’t so!

    3. Nathan Avatar
      Nathan

      “This article takes too narrow a view of the relationship between circuit courts and the Supreme Court.”

      I could say the same for your comments related to it.

      “Second, the article overlooks, or ignores, those decisions of the Fourth Circuit that are appealed to the Supreme Court that the Court declines to take up, thus letting the Fourth Circuit decision stand.”

      Letting a lower court ruling stand does not necessarily mean that the Supreme Court agrees with the decision. The Supreme Court can’t possibly right every wrong individually. They can’t hear that many cases.

      Additionally letting a lower court ruling stand does not mean that the Supreme Court won’t choose to take up that issue at a later date.

      With respect to gender dysphoria issues, it would be entirely in keeping with past precedent for the court to let some time to pass, and have several cases make it to the appellate court for rulings prior to taking up the issue at the highest court in the land. This gives both sides an opportunity to refine their arguments and evidence. It also allows numerous judges from various perspectives to rule. The Supreme Court then has a much broader body of work from which to draw.

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        You are correct that I also presented a somewhat simplistic view of the Supreme Court’s docketing. There are so many nuances on this issue that entire journal articles have been devoted to analyzing the potential strategies at issue.

        I don’t buy the argument that they are too busy to hear more cases. Before 1988, the Court regularly heard about 150 cases annually. After legislation passed that year giving the Court more control over its docket, the number of cases heard with oral argument dropped to 80-90 per year. In recent years, the number of cases heard with oral argument has continued to drop. In the term just completed, it heard 59 cases. https://www.msnbc.com/opinion/msnbc-opinion/supreme-court-no-decision-bad-decision-it-s-happening-too-n1295991

        The argument you make in your last paragraph about the Court letting issues “marinate”, with different circuits hearing them, giving the Justices various perspectives to consider, is idealistic. This Court in the most recent term did not hesitate to take up issues that had been heard only by a single Court of Appeals. For examples:
        Biden v. Nebraska
        303 Creative LLC v Elenis
        Groff v. DeJoy
        Sackett v. EPA

        1. Nathan Avatar
          Nathan

          “I don’t buy the argument that they are too busy to hear more cases. Before 1988, the Court regularly heard about 150 cases annually.”

          I never said the court couldn’t take on a few more cases, but it would still be only a tiny fraction of the approximately 8,000 petitions that are sent there each year.

          Additionally, the workload of the Supreme Court isn’t limited to the cases they choose to hear.

          Four law clerks for each justice review the cases and write detailed memos about each petition. The justices then review those memos and choose which ones to hear in a process that requires four votes to grant a writ of certiorari, or judicial review.

          As I stated previously, the job of the Supreme Court is not to right all wrongs from lower courts. That’s impossible. They must limit themselves to the cases of national import, typically where lower courts disagree. As I said previously, this may take time for relatively new issues. If there’s a compelling urgency to act quickly, the Supreme Court may do so, but that’s not typically how it works.

          Contrary to what some people think, the justices’ decisions on which cases to hear aren’t based on how much “fun” they think a case might be, said Breyer.

          “Our real object is to decide in those cases that require a uniform federal decision, which almost always is where the lower courts have come to different conclusions on the same question of federal law,” he said.

          “Mechanics play an important role” in the selection of cases and the decision process, said Breyer. “We’re not there to make some theory about something. We’re there to decide cases. That’s the job.”

          https://hls.harvard.edu/today/a-reflective-justice-breyer-explains-inner-workings-of-supreme-court-at-hls-video/

          1. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            I agree with you in general. However, it would seem that gender dysphoria is an issue of “national import”. And, as shown by the examples I cited, this Court had no compunction against taking up cases on which only one Circuit Court of Appeals had ruled and which they then proceeded to overturn the lower court. If there had been at least four Justices that thought the Fourth Circuit was wrong in the two transgender cases I cited, I think they would have either accepted it for oral argument (Williams v Kincaid) or sided with the district court’s court temporarily blocking the West Virginia law.

          2. Nathan Avatar
            Nathan

            Time will tell with respect to the gender dysphoria issue and the Supreme Court.

            I enjoyed this back and forth with you, as it showed that informed people can bring different perspectives to a topic.

            While I may be introducing another topic, it reinforces in my mind the need for viewpoint diversity at UVA and other public institutions of higher education.

          3. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            I enjoyed it, too. It is good to be challenged and pushed a little.

          4. Nathan Avatar
            Nathan

            Back to the Forth Circuit Court, I thought you might find this interesting.

            If school districts want to continue to keep secrets from parents in the guise of “inclusion of transgender students,” I would suggest that they listen carefully to the oral arguments at the Fourth Circuit Court of Appeals in John and Jane Parents 1 v. Montgomery County Board of Education.

            While a decision on whether these policies violate parents’ 14th Amendment due process rights is still pending, the judges seemed skeptical about their constitutionality.

            https://www.foxnews.com/opinion/one-state-cleaning-up-schools-democrats-used-labs-social-experiments

        2. James McCarthy Avatar
          James McCarthy

          And it should be noted SCOTUS heard a case that had no controversy or even an actual person attempting to assert a right.

          1. Nancy Naive Avatar
            Nancy Naive

            Hypothetical case.

            Say, where is you?

    4. James C. Sherlock Avatar
      James C. Sherlock

      That is why I did not identify any cases that the Supreme Court overturned with less than a 7-2 majority, Dick

  5. f/k/a_tmtfairfax Avatar
    f/k/a_tmtfairfax

    The lower federal courts, district and courts of appeal, have their basic jurisdiction set by Congress. For example, most appeals or petitions for review of federal agency action go to federal district court, but the Hobbs Act (Administrative Orders Review Act, 28 U.S.C. §§ 2341–2353) provides for judicial review of agency action by the federal courts of appeal (excluding the Federal Circuit) for the Federal Communications Commission, Secretary of Agriculture, Federal Maritime Commission, Nuclear Regulatory Commission, Surface Transportation Board, Secretary of Transportation and the Fair Housing Act, along with certain provisions regarding railway safety. This is fully consistent with Article III, Section 2 of the Constitution.

    I suspect Judge Wynn, a very experienced judge and attorney, may have had his ego in charge when he made his remarks.

  6. Nancy Naive Avatar
    Nancy Naive

    Some Democrats are responding to Alito’s comments on Congress having no Constitutional checks on SCOTUS by noting that Congress controls the purse strings and funding the Court.

    Defund SCOTUS is a really, really bad idea. It wouldn’t work anyway since the Conservative justices have enough private funding to run the place for decades.

    1. Nathan Avatar
      Nathan

      I don’t know where you are getting your information, but Alito never said “Congress has no Constitutional checks on Scotus.”

      Here’s what he said (speaking of Congress):

      “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”

      There are numerous checks and balances in the Constitution, but Congress has no ability to make rules for the Supreme Court, and the Supreme Court has no ability to make rules for Congress. It’s called separation of powers. Surely you have heard of it.

      Congress does have the ability to make rules for itself, but has little interest in cleaning up its own house.

      Nancy Pelosi has opposed rules about members owning individual stocks for many years. Why? Because the Pelosi family has made millions using her inside knowledge and influence.

      The Pelosi corruption is so blatant and so well known that there are numerous sites that track their stock trades. Following Pelosi stock trades is so important to investors, there’s even a site to tell you which Pelosi stock trackers are best.

      I’m not joking. Check it out.

      https://moneymade.io/learn/article/nancy-pelosi-stock-tracker

      1. Eric the half a troll Avatar
        Eric the half a troll

        Who is Speaker again…?

        1. Nathan Avatar
          Nathan

          Exactly. With Pelosi gone, there’s a glimmer of hope that things could change.

          Right now, Congress is allowed to do what others would be jailed for. It’s called insider trading. Remember Martha Stewart?

          U.S. Senators Josh Hawley (R-Mo.) and Kirsten Gillibrand (D-N.Y.) will introduce the bipartisan Ban Stock Trading for Government Officials Act. The legislation would create stringent stock trading bans and disclosure requirements for Congress, senior executive branch officials, and their spouses and dependents. The bill bans stock trading, stock ownership, and blind trusts; imposes heavy penalties for executive branch stock trading; requires reporting of federal benefits; creates additional transparency in financial disclosure reports; and increases transaction report penalties under the original STOCK Act.

          https://www.hawley.senate.gov/hawley-gillibrand-introduce-landmark-bill-banning-stock-trading-and-ownership-congress-executive

          1. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            Banning stock ownership or trading by members of Congress seems unreasonable. Requiring them to assign their stocks to a blind trust would be more feasible.

          2. Nathan Avatar
            Nathan

            Forbidding stocks within blind trusts may be going too far, though it is unclear to me if they could still have index funds, mutual funds, etc.

            My point was not to endorse the specifics of the bill, but to demonstrate that Congress has been lacking in its regulation of itself. As I stated previously, they are currently able to do things that the rest of us would be jailed for.

            That’s true of both parties.

            Throw Them All Out: How Politicians and Their Friends Get Rich Off Insider Stock Tips, Land Deals, and Cronyism That Would Send the Rest of Us to Prison

            https://www.amazon.com/Throw-Them-All-Out-Politicians/dp/0547573146/?_encoding=UTF8&pd_rd_w=z2Tp7&content-id=amzn1.sym.5f7e0a27-49c0-47d3-80b2-fd9271d863ca%3Aamzn1.symc.e5c80209-769f-4ade-a325-2eaec14b8e0e&pf_rd_p=5f7e0a27-49c0-47d3-80b2-fd9271d863ca&pf_rd_r=1F1TXQHD5TT42MW2PG2P&pd_rd_wg=w9Jcd&pd_rd_r=6e4dcc48-89f1-439d-a6c9-8a2ac570d064&ref_=pd_gw_ci_mcx_mr_hp_atf_m

          3. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            I am sympathetic to your overall point.

  7. Nathan Avatar
    Nathan

    Oral arguments at Fourth Circuit Court of Appeals in John and Jane Parents 1 v. Montgomery County Board of Education.

    https://www.ca4.uscourts.gov/OAarchive/mp3/22-2034-20230309.mp3

    While a decision on whether these policies violate parents’ 14th Amendment due process rights is still pending, the judges seemed skeptical about their constitutionality.

    https://www.foxnews.com/opinion/one-state-cleaning-up-schools-democrats-used-labs-social-experiments

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