With Ketanji Brown Jackson confirmed, six of the last 14 Supreme Court justices have come from the U.S. Court of Appeals for the District of Columbia Circuit. Why is that, and why does it matter?

It hasn’t always been this way. In the court’s early days, the D.C. Circuit didn’t exist, but few justices had prior experience on any federal court. Of the 34 antebellum justices, only three had been federal judges before they were nominated. (Most were politicians.)

Even when the D.C. Circuit was established in 1893, it didn’t become the Supreme Court’s feeder team right away. The D.C. Circuit took 50 years to send a single judge to the Supreme Court; in the same years, the 6th Circuit sent four.

But in those five decades, the whole scheme of American government changed. (I exaggerate, but not grossly.) In the 1800s and early 1900s, the system still worked mostly like we learned in school: Congress wrote the laws, the president enforced them and judges interpreted them. In fact, something like that was true across the major democracies. The U.S., the U.K., France and Weimar Germany all assumed that laws should be made by the people’s representatives convened in a legislature; in a word, they all believed in some form of parliamentary democracy.

Yet they also wanted their governments to solve problems their parliaments couldn’t seem to handle by themselves. In the U.S., these were problems like railroad shipping rates, food safety and especially Prohibition; everywhere it was the Great War and the Depression.

Sometimes the obstacle was the central government’s sheer size — it wanted to regulate more of society, more intimately, than a legislature had time to do. Sometimes the obstacle was gridlock, a divided legislature’s inability to pass any law at all in response to crises like hyperinflation.

Whatever the problem, the same solution kept presenting itself: delegate lawmaking authority to the executive branch and let it deal with it.

By the 1930s, the future of parliamentary democracy was in doubt on both sides of the Atlantic. (I owe much of this story to University of Connecticut scholar Peter Lindseth.) In Germany, eminent legal scholar Carl Schmitt defended the Enabling Act that gave Adolf Hitler dictatorial powers. In the modern world, Schmitt wrote, a legislature simply couldn’t keep up with “the constant changes in the political, economic, and financial situation.” Legislatures everywhere had begun delegating lawmaking power to the executive branch. What had the Enabling Act done, Schmitt asked, but take the process to its logical conclusion?

At the same time the dean of Harvard Law School — an executive-branch man himself, recently returned from running the Securities and Exchange Commission — wrote that strict separation of powers was inadequate “to deal with modern problems.” He argued the agencies regulating big companies needed to be organized efficiently like the companies themselves, without checks and balances to slow down their decision-making. He was hardly the only American reaching that sort of conclusion.

In Germany, we know how this story ended. In France (constitutionally speaking), things turned out about the same. In 1940 the legislature authorized the prime minister not only to pass whatever laws he wanted but even to promulgate a new constitution.

The U.S. avoided the French and German catastrophes, but not by ending executive lawmaking — far from it. The Supreme Court issued two early rulings setting limits on the process, but since 1935 it hasn’t struck down a single act of Congress for delegating too much power to the executive branch.

Instead of ending executive lawmaking, the U.S. found ways to regulate the regulators. Congress kept its hand on the checkbook, and presidents appointed the agencies’ leaders, but just as important were the procedures enacted by Congress that the agency lawmakers were supposed to follow: publishing plans for new rules, letting people submit comments, keeping a formal record of the rule-making process and so on.

And that, finally, is where the D.C. Circuit comes in. If an agency’s decision hurts you, you can sue to invalidate it. You can comb its formal record for mistakes, you can argue it didn’t follow the right procedures, you can claim it exceeded the authority Congress gave it. And, because so many agencies are headquartered in Washington, D.C., the D.C. Circuit came to specialize in that sort of lawsuit.

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So, what does it say that the D.C. Circuit has become the Supreme Court’s feeder team?

It says that reviewing agencies’ actions is the most important thing the federal courts do today. That, in turn, suggests that agency action itself is the most important part of the federal government. Simply looking at the numbers, these conclusions are hard to dispute: The United States Code, containing the laws passed by Congress, is about 60,000 pages long, but the Federal Register, where the agencies publish their proposed rules, averages more than 60,000 pages per year.

Forget knowing how many regulations executive agencies have enacted; today no one even knows for sure how many agencies are authorized to enact them.

Instead of “Congress passes laws, the president enforces laws and judges interpret laws,” you might capture more of the government’s day-to-day activities by saying that Congress funds agencies, presidents staff agencies and courts second-guess agencies, while the agencies pass, enforce and interpret the laws.

If you don’t like that, well, neither do I. The checks on agency lawmaking are a lot better than nothing, but they’re cold comfort for lots of people the agencies regulate. If you have a problem with an agency, getting Congress or the White House to notice is usually impossible, and challenging an agency in court may be more trouble than it’s worth — it often makes more sense to acquiesce to an unlawful regulation and stay on the agency’s good side.

There are growing calls (mostly from the right) for the Supreme Court to start limiting agency lawmaking again, even if few people believe it’s possible to restore a strict Madisonian separation of powers. Schmitt and the Harvard dean may have been wrong, but they weren’t crazy; Congress really can’t enact all the laws most voters today expect the federal government to enact.

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But whatever the Supreme Court does, one thing is unlikely to change in the foreseeable future. If you think agency lawmaking is a good thing, then you want your best judges on the D.C. Circuit because you want it done right — you want top legal talent to be reviewing agency decisions and making sure the system works.

If you think agency lawmaking is a bad thing, then you still want your best judges on the D.C. Circuit, because that’s where they have the most opportunity to rebuke overactive agencies and push power back toward Congress. And if both sides are putting their most promising judges on the D.C. Circuit, then it should surprise no one that both sides look to the D.C. Circuit when it’s time to appoint a justice.

Either way, Jackson won’t be the last Supreme Court nominee out of the D.C. Circuit.

Alan Hurst is an attorney in Salt Lake City. His opinions are his own and do not represent the views of his firm or his clients.

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