In America's past year of violence, we have witnessed something like a microcosm of the chaotic situation that existed in Russia in 1917.
Late last year, when the world was still halfway normal, I was planning a Transatlantic Law Forum (“Populism and the Rule of Law”). Among the confirmed participants, as on previous occasions, was Judge Stephen F. Williams of the federal D.C. Circuit Court of Appeals. The event, planned for early May 2020 in Hamburg, had to be canceled, to our mutual regret. Another three months later, the wretched virus took my dear friend’s life. Steve Williams died on August 7 of covid-related complications.
Tributes (see here and here) have come promptly; and since so many owe so much to the great man, many more will appear over the days, weeks, and months to come. (Scalia Law School’s Center for the Study of the Administrative State is in the very early planning stages for an event to honor Steve’s immense contributions as a scholar and a judge.) For now, a few appreciative notes must do.
Judge Williams was appointed to the D.C. Circuit by President Reagan in 1986. He served until 2001 and then took senior status. I got to know him during my tenure at the American Enterprise Institute, where he was a participant in many of the law-related events I organized; a cherished guest at many of the free-flowing dinner conversations convened by Chris DeMuth; and an engaged audience member at events that had nothing to do with law. Steve’s intellectual range and curiosity were astounding. Eulogists have noted that he wrote two books about liberal politics in pre-Bolshevik Russia and, with the help of a tutor, learned Russian in his sixties. The more amazing thing is that he traveled to Russia for extended periods to do archival research. Florence, to study the Renaissance: I get that. But Russia? That’s a serious scholar at work.
In the same frame of mind, Steve had this habit of asking probing questions—genuine questions prompted by curiosity, not the “gotcha” polemics one gets from too many appellate judges and law profs. When he received a satisfactory answer, he’d say “Oh, I see,” in a cheerful voice that expressed gratitude for having learned something. He did that over dinner; at public events; even, my appellate lawyer-friends tell me, from the Bench.
Steve’s professorial mind was also enormously productive. As a scholar at the University of Colorado Law School in Boulder, he made signal contributions to the study of energy regulation, a field with notoriously difficult economics and convoluted regulatory schemes to match. On the D.C. Circuit, Judge Williams ended up on countless FERC cases—perhaps, as one of the judges (I believe Larry Silberman) once suggested with a wink, as a form of punishment; more likely, because it’s good to have cases decided by someone who knows what he is doing and, moreover, makes it look interesting to the rest of the world.
His contributions to administrative law were equally impressive. Former law clerks have listed some of them; I’ll add two.
Steve’s consistent position was that agency rules should do more good than harm, at least so long as the authorizing statute permits that (not always a given). At a minimum, agencies must recognize that “choice means giving something up” and explain why they made this rather than that choice. Perhaps the best illustration is Competitive Enterprise Institute v. NHTSA (1992), arising over the agency’s fuel efficiency (”CAFE”) standards. (Disclosure: I served then and serve now on CEI’s Board.) Turns out, higher standards mean a fleet of smaller, less-safe cars, and more highway deaths. Confronted with that undisputed fact, NHTSA could have (1) said that excess deaths don’t count under the statute; (2) confronted the trade-off and explained why it made the choice it made; or (3) tried to fake its way through. Sure enough, NHTSA chose option (3). Judge Williams would have none of it:
When the government regulates in a way that prices many of its citizens out of access to large-car safety, it owes them reasonable candor. If it provides that, the affected citizens at least know that the government has faced up to the meaning of its choice. The requirement of reasoned decisionmaking ensures this result and prevents officials from cowering behind bureaucratic mumbo-jumbo.
In a way that stern reminder has fallen on deaf ears. To this day NHTSA is pursuing its blood-for-oil CAFE policy (although it is now called “climate change policy,” not energy conservation). Still, the opinion put down an important marker: if you can’t explain it to us, forget it.
Judge Williams fully understood that appellate courts can do only so much to improve agency performance. Precisely on that account, they should not turn a regulatory scheme into a bigger mess than it already is. In Mozilla Corp. v. FCC (December 19, 2019), the D.C. Circuit greenlighted the FCC’s 2018 rollback order of the Obama administration’s “network neutrality” rules. But the majority then concluded, incomprehensibly, that the FCC had no authority to preempt state regulations that impose “neutrality” or other requirements—with the result that any state is now free to regulate the internet into the ground.
Judge Williams’s dissent from that part of the majority opinion (perhaps his final published opinion in a major AdLaw case—I haven’t looked) begins, characteristically, with a Shakespeare quote:
And be these juggling fiends no more believed,
That palter with us in a double sense;
That keep the word of promise to our ear,
And break it to our hope.
So says Macbeth, finding that the witches’ assurances were sheer artifice and that his life is collapsing around him. The enactors of the 2018 Order, though surely no Macbeths, might nonetheless feel a certain kinship, being told that they acted lawfully in rejecting the heavy hand of Title II for the Internet, but that each of the 50 states is free to impose just that.
The remainder of the dissent patiently explains that established preemption law is to the contrary and, in a slightly exasperated tone, that the internet is in fact a network industry.
The Judge sent me the opinion when it came out, along with one of those winking notes of his: “Tell me that I have this right.” Take a wild guess, Judge. Of course you do.
We had many exchanges of that kind. Steve would send me published opinions; I’d send him articles in progress, for his unfailingly generous and perceptive comments. Alas, looking over through my email box the other day, I discovered that our final exchange had to do with—airline tickets, for that abortive Hamburg event. A painful reminder that we, or I at any rate, take way too much for granted.
On that wistful note, with profound gratitude for a long and rewarding friendship and with heartfelt condolences to Faith and the family, I bid a fond farewell to Stephen F. Williams.