The newest D.C. Circuit judge, Justin Walker, has received considerable attention in the press for his relative youth (he was born in 1982). Less noticed have been Judge Walker’s extrajudicial writings, which contain some diverse and intriguing finds.
In his most recent piece—published earlier this year, just before he joined the D.C. Circuit and before Justice Ginsburg died—he predicted a “jurisprudential revolution” in the separation of powers led by Justice Brett Kavanaugh:
In the coming years, Congress will delegate less, agencies will receive less deference from courts, and agencies will enjoy less independence from the President—all because the Supreme Court will add new life to Schechter‘s nondelegation doctrine, severely limit Chevron, and roll back Humphrey’s Executor. With each decision, the Court will shift decision-making away from policymakers, who are politically unaccountable, and toward those more directly controlled by the citizenry, as it moves the administrative state away from the Chevron extreme of what I call the Schechter-to-Chevron spectrum.
This Article argues that the Court’s most junior member, Justice Brett Kavanaugh, will lead this impending movement along the Schechter-to-Chevron spectrum; that Kavanaugh’s conservative colleagues will follow him; and that the principle of democratic accountability will animate each movement of this jurisprudential revolution.
The Kavanaugh Court and the Schechter-to-Chevron Spectrum: How the New Supreme Court Will Make the Administrative State More Democratically Accountable, 95 Ind. L.J. 923, 924 (Summer 2020).
We assume Justice Barrett, now the Court’s most-junior member, may have some thoughts on this prophesied revolution (though she’s written little on administrative law).
Another recent piece by now-Judge Walker that caught our eye was on a seldom-addressed topic for legal writers: fear of the blank page.
Here, Judge Walker (joined by coauthor Samantha Hall), quotes author Anne Lamott:
For me and most of the other writers I know, writing is not rapturous. In fact, the only way I can get anything written at all is to write really, really s—– first drafts.
If that’s too frightening, Walker and Hall suggest brainstorming a nonlinear, “whirlybird” outline suggested by Professor Bryan Garner.
The important thing, they say (again quoting Lamott), is to get “something—anything down on paper.” “Don’t be afraid to make a mistake—or a few dozen.” After all, they note: “General Grant took Vicksburg only on his eighth try,” “Steve Jobs was once fired from Apple,” and “Michael Jordan missed the game-winning shot 26 times.”
If you’re interested in reading other pieces by Judge Walker, you’ll find them listed in his response to the Senate Judiciary Committee’s questionnaire.
