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Circuit Assignments May Give Most High Court Justices 'Home Court' Advantage
The National Law Journal
June 18, 2009
The last-minute challenges to the Chrysler Group LLC sale last week focused a rare spotlight on a little-known aspect of the Supreme Court's work: the justices' circuit assignments.
A throwback to the days when justices rode the circuits, federal law calls for individual justices to be assigned to the various federal circuits to handle emergency applications. Justice Ruth Bader Ginsburg received the Chrysler filings because the bankruptcy originated in the 2nd U.S. Circuit Court of Appeals, which is assigned to her.
When Justice David Souter retires this summer, new circuit assignments will be made by the Court. By a rare happenstance, the post-Souter assignments could have special significance because they may end up giving almost all of the justices "home court" circuits -- circuits where they were raised or once served as judges.
Souter has been the circuit justice for both the 1st and 3rd circuits. When he departs, the betting is that, at least temporarily, Justice Stephen Breyer, who now handles the Denver-based 10th Circuit, will take over the 1st, where he sat for 14 years. And the 3rd? That could go to Justice Samuel Alito Jr., who was a 3rd Circuit judge for 15 years but has been assigned to the St. Louis-based 8th since joining the Court in 2006.
It may seem logical that a justice is assigned to a circuit he or she knows, but it almost never starts out that way. "You don't automatically get your home circuit," said a retired deputy clerk of the court, Francis Lorson. Ginsburg, for example, grew up in New York and feels right at home with the 2nd, but when she replaced Byron White in 1993, she was initially assigned to his 10th circuit.
But over time, justices in recent years have gravitated to their home circuits. Justices Anthony Kennedy and Clarence Thomas celebrated homecomings of sorts when they were assigned to their home circuits -- the 9th and 11th, respectively -- well into their tenures.
Justice John Paul Stevens handles his beloved 7th Circuit, where he was once a judge, and Chief Justice John Roberts Jr. handles both the D.C. Circuit, where he once sat, and the 4th, where he lives. (The chief justice is traditionally assigned the D.C. and 4th circuits.)
So if Souter's circuits get assigned to Breyer and Alito, the result would be that only two of the nine justices on the new Court will be assigned to "foreign" courts: Antonin Scalia and Sonia Sotomayor, if confirmed. Scalia has long been assigned to the busy 5th Circuit in New Orleans. If he keeps the 5th and Ginsburg hangs on to the 2nd, that would leave only the Midwestern 8th or the Western 10th open for Sotomayor -- a New Yorker through and through.
