Roberts: a judge on two courts
Chief Justice John G. Roberts, Jr., is now not only a member of the Supreme Court but also, for the time being at least, is continuing to serve as a judge on the D.C. Circuit. That lower court on Friday released an opinion in which Roberts participated as Circuit Justice, taking full part in a ruling by a three-judge panel that had heard the case before he was nominated to lead the Supreme Court and the federal judiciary.
The opinion in Banner, et al., v. U.S., et al. (Circuit docket 04-5190) upheld the constitutionality of a 1973 law passed by Congress barring the local government in Washington, D.C., from imposing an income tax on workers in the District of Columbia who live outside the city, mostly in Maryland and Virginia. Local government officials and residents of D.C. challenged this ban, arguing that it discriminated against them in favor of residents of the states that surround the Districft, and that it is an invalid form of a non-uniform tax law. The Circuit Court rejected both arguments, concluding that Congress has full power to decide on tax legislation for nation’s capital, and that authority includes the power to decide not to tax specified forms of taxation.
The Banner opinion was unsigned, so it is unclear which of the three judges wrote it: Roberts, or Circuit Judges Judith W. Rogers or Harry T. Edwards (who took senior status on Thursday, the day before the ruling was issued.)
Roberts’ participation in the case is explained only by a brief footnote, reading: “Chief Justice Roberts was a member of this court when the case was briefed and argued and is designated Circuit Justice of this court. See 28 U.S.C. secs. 42, 43(b).”
Section 42 of the U.S. Code deals with the assignment of members of the Supreme Court to the federal circuits, usually for purposes of reviewing emergency matters that arise from the individual circuits. That section itself does not deal specifically with a Justice actually sitting to judge a case on a lower court.
Section 43 deals with the makeup of the circuit courts of appeals. Its paragraph b reads in part: “The circuit justice and justices or judges designated or assigned shall be competent to sit as judges of the court.”
It is apparent that the Banner case could have been decided without Roberts’ participation. The two other judges appear to have joined in the opinion in full, and their votes would have been sufficient to decide it. Section 46(d) of the same Code title says that two judges may constitute a quorum to decide a case before a three-judge panel.
The late Chief Justice William H. Rehnquist did serve at least once as a trial judge in a U.S. District Court, but apparently never as a member of a Circuit Court for purposes of deciding a case at that level. (A helpful reader points out that Justices Antonin Scalia and Clarence Thomas continued to take part in D.C. Circuit panel decisions after they had become Justices, when they had sat on the panels involved. Neither was a Circuit Justice for the D.C. Circuit, but presumably each was designated to continue to sit.)
Roberts presumably will not be sitting to hear any more D.C. Circuit cases, but Friday’s opinion makes it appear that he will remain a part of panels for purposes of deciding cases that he had heard while a judge on that court. It is doubtful that he would sit as a Circuit Justice to hear and decide new cases in the other jurisdictions where he holds that position, the Fourth Circuit and the Federal Circuit.
If the Banner case is now appealed to the Supreme Court, Roberts — according to a statement he made to the Senate Judiciary Committee — would disqualify himself from participating in any action on the case.
(Footnote: the Chief Justice is a resident of Maryland who works in the District of Columbia. The opinion in Banner, though, points out in its footnote 4 that Maryland offers a credit to its residents who pay taxes to another jurisdiction, so Roberts would not necessarily have to pay added taxes were there a commuter tax in the city where he works.)
The per curiam is consistent with Roberts having written or at least drafted the opinion, as previously discussed here in relation to Justice Fortas.
Comment by r.friedman — November 4, 2005 @ 3:11 pm
After being nominated to SCOTUS, Roberts recused himself from the DC Cir appeal in ABA v. FTC (lawyers & Gramm Leach Bliley), for which he had been part of the panel that had heard OA. It is widely accepted that this was because the ABA was evaluating him. Now that Roberts has indicated he will participate in cases in which he had heard argument AND the reason for his recusal has arguably been mooted, is there any reason to believe he can un-recuse himself and participate in deciding ABA v. FTC?
Comment by unconfirmable — November 4, 2005 @ 4:17 pm
In addition to Justice Scalia and Justice Thomas, Justice Stevens also continued to sit on at least one Court of Appeals panel upon being elevated. Other Justices who sat with the Court of Appeals for their assigned circuits have included Justice Holmes, Chief Justice Taft, and Justice Frankfurter, among others. I don’t think it’s ever been a controversial practice and there are good arguments that it should happen more often –Judge Posner’s book on Federal Courts argues that the Justices should regularly sit with lower courts during the Supreme Court’s summer recess. The principal counter-argument is recusal problems created if the case later comes before the Supreme Court, but that is certainly not an issue in this case in which Chief Justice Roberts, having served on the panel below, would recuse anyway.
Comment by Ira Brad Matetsky — November 4, 2005 @ 8:52 pm
“did serve at least once as a trial judge in a U.S. District Court”
Rehnquist, that is. Interesting footnote. Got the case?
Comment by Joe — November 6, 2005 @ 4:19 pm
Joe, I believe that then-Associate Justice Rehnquist presided over a jury trial in the Eastern District of Virginia in 1984. I don’t believe he wrote any opinions in the case.
Comment by Ira Brad Matetsky — November 7, 2005 @ 7:39 am