The Architecture of Respect: Inside the D.C. Circuit

Two judges appointed by presidents of different parties reflect on collegiality, dissent, and why respect — not agreement — is the foundation of judicial independence.

At the 2025 annual meeting of the American Law Institute (ALI), David F. Levi, ALI president, former federal judge, former Duke Law dean, and founding director of the Bolch Judicial Institute, welcomed attendees to a conversation that illuminated the inner workings of collegial judging. Moderated by Kathleen M. Sullivan, who recently retired as chair of Quinn Emanuel’s national appellate practice group, the discussion featured former U.S. Court of Appeals for the D.C. Circuit judges David S. Tatel and Thomas B. Griffith reflecting on their service together, the cultural and structural foundations of respect on the D.C. Circuit, and why — even amid deep disagreement — respect must remain a bedrock of judicial independence. Drawing on landmark cases and decades of shared experience, their conversation offered a powerful example of reasoned discourse and mutual regard in action.

What follows is an edited transcript of that conversation.

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DAVID F. LEVI: We have three of the most remarkable people today. I’ll mention them alphabetically.

Tom Griffith served with great distinction on the D.C. Circuit for 15 years, from 2005 to 2020. He and I served together on President Biden’s Commission on the Supreme Court of the United States, which is how I came to know him. He’s had a lot of varied experience in public service and in private practice, including having served as general counsel of Brigham Young University (BYU) and U.S. Senate legal counsel. He is wise and wonderful.

Kathleen Sullivan is one of the very best appellate advocates of the last 50 years. She had an amazing career in practice at Quinn Emanuel Urquhart and Sullivan, which she has just finished up. Before that, she was an astonishingly accomplished academic at Harvard and then at Stanford, where she also served as dean of the Stanford Law School. She’s done a lot of other things as well. She’s highly regarded and a lovely person to boot.

And then David Tatel, who is one of the most distinguished and influential appellate judges of the last 50 years. He served 30 of those 50 years on the D.C. Circuit. He’s just left to go back to Hogan Lovells. He has written a marvelous book called Vision, which is a memoir about his life in the law and life before that, and about his dog, Vixen, who’s also here on the podium.

And now I’m going to get out of the way because we all want to hear from them. Kathleen?

KATHLEEN M. SULLIVAN: David, thank you for that overly generous introduction. It’s wonderful to see so many friends and colleagues. And it’s my privilege to host this incredible conversation between two of the most respected and beloved judges ever to have sat on the D.C. Circuit.

What you might already know about them is that Judge Tatel was appointed by President Bill Clinton and served for 30 years on the D.C. Circuit, and Judge Griffith was appointed by President George W. Bush before his service on the court. So you might think, well, that’s interesting. We’re going to hear from people who were across the political aisle.

But I thought I would tell you some things you might not know about their points of commonality and overlap, not just that they both worked in private practice — Judge Tatel at the Hogan firm and Judge Griffith at Wiley Rein and now at the Hunton Andrews firm. They both served in another branch of government outside the Article III branch, Judge Griffith as legal counsel to the Senate and Judge Tatel in his role at what was then called the Department of Health, Education and Welfare. They both raised their families in the D.C. suburbs.

And each spoke at the other’s portrait ceremony upon their stepping down from the court. Of course, Judge Tatel speaks very warmly of his friendship with Judge Griffith in his magnificent memoir, Vision, which as David Levi just did, I commend to all of you.

What I hope we’ll do today is explore with judges Tatel and Griffith how across the apparent political aisle they developed such a deep friendship, such warm and mutual admiration and respect. And I thought we might start, Judge Tatel, with the court on which you both served, the D.C. Circuit, a famously collegial court. You might think that’s explained by architecture. All the judges of the circuit sit in one building. You sit with all the judges of the district courts whom you’re either going to reverse or affirm. You share a common lunchroom. Maybe you don’t want to go to the lunchroom after you’ve issued a reversal, and the district judges are there. But you’re down the hall from one another. It’s easier to converse in the course of writing opinions and dissents. So there are these architectural features. But Judge Tatel, speak to us about the structural and institutional features of the D.C. Circuit when you served. Explain its famous collegiality.

DAVID S. TATEL: Well, first of all, I want to say what a total pleasure it is, Kathleen, to do this with you, David Levi, and my dear friend Tom. It’s quite a treat.

Judicial collegiality is personal. Lots of characteristics and features support it and make it possible. We can talk about some of those today, but there are a couple of structural or institutional events at the D.C. Circuit that I’ve always thought are responsible, at least in part, for the court’s unusually collegial atmosphere.

One occurred in the early 1980s. President Reagan had promised in his campaign to rid the country of the liberal Bazelon Court. And in the first few years, he appointed five judges to the D.C. Circuit, many of whom, by the way, had substantial majority support from the Democrats. I mean, who can remember such a time, right?

But one of the very first acts of the new D.C. Circuit, now with a 6–5 majority of Republican appointees, was to en banc three decisions from a single panel of three Democratic appointees. Three cases decided in one day, all en banced by the new Republican-controlled D.C. Circuit.

After a while though, before the case could be heard, one judge, Laurence Silberman, changed his vote and wrote an opinion explaining why — basically saying that the en banc power of the court should be reserved for extraordinary cases only, and that these didn’t qualify.⁵ It inspired a powerful dissent from Judge [Robert] Bork,⁶ but that switched the vote, and those three cases were not en banced.

I mention that because, even though it happened a long time ago, I always thought it had a profound effect on the institution because, first of all, the en banc rate dropped dramatically after that. It went from, I think, four or five a year down to two.⁷ And why that’s relevant here is that — and I’m only speaking for the D.C. Circuit, not for any other court; I want people to understand that — at least on our court, the fewer en bancs we have, the better the collegiality. We are only second-guessing our colleagues in the most important cases, not in all the cases, and that really adds to the mutual respect that the judges have for one another. I’ve always been convinced that the remarkably low en banc rate of the D.C. Circuit is one of those factors. It makes it a very special court to serve on.

SULLIVAN: Judge Tatel, in avoiding en bancs, you mentioned to me a story that I think everyone would find quite interesting about what then Chief Judge Harry Edwards did when you were hearing the U.S. v. Microsoft case.

TATEL: Yes. That’s the second event that I think is also very responsible for the collegiality. We heard U.S. v. Microsoft; this was 25 years ago, initially en banc. There were only seven of us because of recusals. After two days of oral argument, when we went into the conference, the seven of us were pretty divided about the different issues. And quite surprising to all of us, Harry Edwards — who had only been chief judge, I think, for about four or five years — instead of taking the opinion for himself, divided it into seven parts, assigning a part to each of us.

He had figured out who could most likely produce a majority on the issues we were assigned. If we had issued our opinion in a month or two, there probably would have been seven opinions. But five months later, we issued a 125-page unanimous opinion.

What happened in the process was that, because everybody had a writing investment in the case, extensive negotiations were going on within the court. I actually saved the memos that we circulated. They filled two 3-inch binders. There were memos. There were discussions. And what was happening as a result is that, as we discussed them, the issues got narrower and narrower. Again, that’s what judicial collegiality does. It allows judges with different perspectives, which we all had in this antitrust case, to narrow the issues to the point where we could actually reach consensus.

“[A]t least on our court, the fewer en bancs we have, the better the collegiality. We are only second-guessing our colleagues in the most important cases, not in all the cases, and that really adds to the mutual respect that the judges have for one another.”

You know, Chief Justice [John] Roberts had it exactly right. He said, you know, if it isn’t necessary to decide an issue to resolve a case, then it is necessary not to decide it. And that’s what that 125-page opinion is. And it had an effect on the court for decades. Those of us who were part of that felt very proud of what we had accomplished. And the collegiality that produced that opinion lasted for many, many years.

SULLIVAN: Judge Griffith, what else do you recall about the cultural and structural factors behind this collegiality?

THOMAS B. GRIFFITH: So all that happened before I got on the D.C. Circuit. I wish I could claim it, but that’s the court I joined. I remember that the day after the Senate had confirmed me for the D.C. Circuit, I got a phone call from Harry Edwards, who was no longer chief judge — Doug Ginsburg was. Harry Edwards called and said, “I need your home address. I’m going to send you a packet of materials that I want you to read.” He was very imperious in saying that, but I was willing. And a day later, in my office at BYU, I got this large Federal Express package with four or five articles about collegiality.

So he sent me that message: “This is how we do it here.” And then when I got there, that’s what I inherited. We had lunches together and social events together. Harry tells the story that right around this time when he’s trying to change the culture, he adopted the habit of giving birthday cards to judges. Apparently that hadn’t been done before. And he tells the story, I can’t remember who he told the story about, but he gives him a birthday card, and the judge looks at it and says, “What do you want?” Harry said, “I want to wish you a happy birthday.”

Now, you know, on a court there is tension and there are times of sharp disagreement. And Harry and I disagreed on a number of matters, but it was never personal. It was always done with a sense of, “You’ve been appointed by the president of the United States to this position, I’m going to treat you with dignity and respect.”

SULLIVAN: Judge Griffith, talk about how that fed into the practice with regard to dissents. So dissents are the place to express your sharp disagreement.

GRIFFITH: Exactly.

SULLIVAN: How did the chiefs handle those?

GRIFFITH: The ones I remember most were when Merrick Garland was chief. On a number of occasions, a dissent would circulate, and you’d see an elbow being thrown here and there. And Merrick, in his wonderful way, would just try and talk the author through that. “You can make the point, right, you can disagree vigorously about the law, but let’s get the sharp elbows out of it.” He didn’t succeed in every instance, but that was the prevailing ethic. “Do you really need to do that? Can’t you find a different way?”

My first year on the court, I think I wrote five or six dissents, and I was really slow and late in my opinions.

TATEL: I remember that time.

GRIFFITH: None of them were snarky. But I can remember some of the more senior judges just in their own wonderful way saying: “You know, we really don’t dissent around here unless it’s really a big deal. Look at the statistics.” And I was an outlier on that. I think I never issued more than one dissent a year in the remaining 14 years, and in some years I didn’t dissent at all.

SULLIVAN: Judge Tatel, you issued more dissents in your early years than your later years. Is that correct?

TATEL: Yes. And let me just say two things. One is, you know, the lunches and the birthday cards and all that, they’re helpful, but that’s not judicial collegiality. That just helps create it. I mean, judicial collegiality, the kind of thing Tom and I are talking about, is judges who respect each other and listen to each other. That’s what collegiality is. The lunches and things like that help it, but that isn’t collegiality.

GRIFFITH: Can I say how they help?

TATEL: Please.

GRIFFITH: It’s small group dynamics, right?

TATEL: Totally.

GRIFFITH: It’s when you get to know someone, you’ll have, hopefully, greater respect for them.

TATEL: Exactly. One of the advantages of writing a book is that I had the time to look back at my work on the court and the work of my colleagues. And I noticed that my dissent rate in my last 10 years was a third of what it was in my first 10 years. And it occurred to me the reason — the cases weren’t any different.

The reason was that over those years, I had gained so much respect and confidence for my colleagues that in conference, in my later years, I realized sometimes if I didn’t agree in a particular case, maybe they were right and maybe it wasn’t worth a dissent. That was my own metamorphosis over those years. And I think it happened to you, too, Tom.

GRIFFITH: It really works against your interest because dissents are a lot more fun and easier to do, right?

TATEL: You don’t have to get anybody to agree with you.

SULLIVAN: Just to explore this theme more, let’s go back to 2012 to a famous decision in which, Judge Griffith, you joined Judge Tatel in the majority over Judge [Stephen] Williams’ dissent. I’m speaking of course about Shelby County v. Holder, the case that raised the question of whether it was constitutional to have a certain formula for preclearance of covered jurisdictions under the Voting Rights Act.

GRIFFITH: Well, that’s a very charitable way to describe what the court did, but we’ll take that.

SULLIVAN: Let’s go back in time. So what I want to hear about is how you navigated this. Judge Tatel wrote the majority opinion. You had tea leaves from the Supreme Court in Northwest Austin v. Holder in 2009 that the Court was possibly going to think that —

TATEL: Tea leaves is an understatement.

GRIFFITH: It was a neon flashing light.

SULLIVAN: There were flashing lights from the Supreme Court. You nonetheless decided to adhere to past precedent and distinguish Northwest Austin. Judge Tatel writes the majority. Judge Griffith, you join Judge Tatel. Judge Williams writes a dissent. Do you want to comment on the dynamics of that decision among the three of you?

GRIFFITH: Yes, thank you. For what it’s worth, it was the single best experience that I had in my time on the D.C. Circuit. It was a big issue, right? Preclearance requirements for the Voting Rights Act. I mean, I’m not a judge anymore. I can reveal my biases.

The most important legislative act in the history of our country, perhaps, right? That’s at stake here. So it’s a big issue. Great lawyers were involved. But the thing that impressed me most was that we didn’t come to our final decisions until months later. In conference, it was — I think I remember in conference, it was clear where you were and where Steve was. As often, I have a hard time making up my mind, it turns out. That’s not a good thing necessarily for a judge. I’m a slow writer, a slow reader, and I have a hard time making up my mind. Other than that, I’m the person for the job.

So I was, as I faintly found myself, in the middle here. But what we did, and I credit both Judge Tatel and Judge Williams with this, we kept talking about the case. We kept talking memo after memo, meeting with one another in chambers to talk things through. And what we ended up with, as you said, was a 2–1 decision. I was happy and proud to join Judge Tatel’s opinion. He let me throw in a little piece at the end to make me feel good, and it was nice.

TATEL: Well, it was more than that.

GRIFFITH: Yes, anyway. And then Judge Williams wrote a brilliant dissent. I mean, everything Steve Williams did in his life, he didn’t know how to do anything less than brilliant, right? He wrote a brilliant dissent. And as I’ve described elsewhere, he wrote a marvelous opinion. David’s was just more marvelous.

It really was. But for me, as the junior member of that panel, to see these two jurists who are exemplars of everything I hope to be someday, treat this contentious issue with huge importance that way, with respect for one another, back and forth discussing, probing issues. It was like attending a graduate seminar with two Nobel Prize winners. I felt like I had to be taking notes of their discussion. For me, it was a fabulous experience.

TATEL: Can I just add two quick things to that? One is, many people in this room knew Steve Williams, and what a marvelous judge he was. And he could be having this conversation with us today. When we all got assigned to the case, he wrote me an email, which said something like, “David, I know we know what the Supreme Court thinks, but my mind is still open. Can we talk?” I mean, think about that. I mean, that’s the best example of how marvelous Steve was as a judge of anything I know.

The second thing is that my modest friend here says that he tossed in a line. The fact is that as we got near the end of it, Tom sent me a note with a sentence in it, which said, in his judgment, in a case like this, under the 15th Amendment, especially Section 2, he said something like, “You know, close calls go to the people’s branch, okay?” That’s in the opinion.

SULLIVAN: You end the opinion with that.

TATEL: And that’s what that case is all about.

SULLIVAN: You end the opinion with that line, deference to the people’s branch.

TATEL: Came from him.

SULLIVAN: I think it was very important to outside observers to see that you two joined in that opinion in a way that, to crude public perception, was across a political aisle. And there were many other cases we could talk about like that. For example, the U.S. v. Maynard case — which was later affirmed by the Supreme Court in U.S. v. Jones — was about whether GPS tracking devices affixed to moving automobiles constituted searches that triggered the protection of the Fourth Amendment.

You want to talk a little bit, Judge Griffith, about the way that case came about?

GRIFFITH: Once again, this was another fun case with a packed courtroom and great civil liberties issues, dealing with the Constitution. I mean, it’s one of these times you have to pinch yourself. “This is my job. I get to do this.” And there are two things about this that I’ll comment on that I enjoyed. From the questions that were being asked from the bench and from the presidents who had appointed us, the press reported one set of predictions, right?

“Ginsburg, he was appointed by Reagan. Griffith, he was appointed by Bush. Tatel, he was appointed by Clinton. We know where this is headed.” And yet, in the conference room, you would never have guessed what types of questions were being raised by which judge. It was totally jumbled up in that it was three judges wrestling with a novel issue. Supreme Court precedent was not clear about this new advance in technology.

And once again, just like in the Shelby County case, we did not come to a decision. Well, in Shelby County, we came to a decision in conference and then just had to work it out over time. This one, we didn’t.

TATEL: No, it took a couple of months.

GRIFFITH: Which is unusual, in conference — and then we met repeatedly after that, with memos repeatedly after that until we could get to the right decision.

SULLIVAN: And then the decision was affirmed by the Supreme Court in a lineup that people also might not have predicted based on political appointments. You got an affirmance authored by Justice [Antonin] Scalia, joined by Chief Justice Roberts, Justice Anthony Kennedy, Justice Clarence Thomas, and Justice Sonia Sotomayor. So that’s another interesting example. Talk a little bit, Judge Griffith, about this culture of reasoned discourse that you’ve described and whether it’s a model that’s useful in our current polarized environment.

GRIFFITH: That’s a softball question. Thank you for asking. Listen, no one needs to point out we’re in an awful moment with the type of political discourse that goes on in our country. Contempt has replaced reasoned disagreement. Ad hominem is the standard fare of many people in the public square. And it’s awful.

This is not typical. This is not normal. The types of divisions we’re experiencing right now have never been this bad as long as we’ve had social scientists to talk about it. I imagine in 1859 they were this bad. But other than that, we’ve never seen anything like this. And there are lots of sources for it.

I think the judiciary can be, and I think it is, a role model for how the country ought to engage in debate — reasoned discourse with respect for the person with whom you’re disagreeing.

“[F]or me, as the junior member of that panel, to see these two jurists who are exemplars of everything I hope to be someday, treat this contentious issue with huge importance that way, with respect for one another, back and forth discussing, probing issues. It was like attending a graduate seminar with two Nobel Prize winners.”

A little over a year ago, I had the wonderful experience of interviewing Justices Sotomayor and [Amy Coney] Barrett in front of the National Governors Association, and I asked them about what reasoned discourse looks like on the Supreme Court. And they said lots of things that were interesting to me. The thing that struck me most is Justice Sotomayor telling the story that, soon after she got on the Court, Justice [David] Souter came to her and said, paraphrasing, “We disagree with one another sharply on things, but no one questions the good faith of another member of the Court.” And Justice Sotomayor said: “And that’s how we operate. We disagree. These are big issues. We disagree vehemently, right? But no one questions the good faith of the other.”⁸

TATEL: I neither agree nor disagree with that, Tom. I hope you’re right. I have a slightly different perspective. In my book, I focus just on the Supreme Court’s decisions and its opinions, nothing else. Not motive, not intent, nothing.

And from that perspective, and I talk about this in the book, I worry when you just look at the Supreme Court’s output — and this is true of the lower courts also, the appeals courts, the large number of ideologically divided opinions, opinions divided politically in the important cases. You could forgive the public for thinking that the courts have become political, that the unelected branches of government have become hopelessly political. And that’s a result of all of these divided opinions, many of which seem to actually flow from a presidential election.

Regardless of what motives are, I don’t know. I think that’s very dangerous for the rule of law and for the respect our court requires in order to perform its function.

SULLIVAN: That’s the Supreme Court, though. There’s a lot more to the judicial branch. Do you think you’re more optimistic, Judge Griffith, looking at the circuits and the district courts?

GRIFFITH: Yes. And I would agree and disagree with my good friend, Judge Tatel, about the Supreme Court. I agree that when you have 5–4 decisions that appear from the outside to be driven by partisan considerations, that’s awful. But I’ll tell you what they report about it. Now, maybe they’re being disingenuous. I don’t know. But I’ll take it at face value. Justice [Stephen] Breyer says this about his 28 years on the Supreme Court, and often made the point in his dissents. He wrote a book about it. And he talks to my class at Harvard and says the same thing, and I just did an event with him a month ago. He said the same thing. “It’s not partisan, it’s not partisan, it’s not partisan.”

SULLIVAN: Not partisans in robes.

GRIFFITH: It’s not partisans in robes. Now — okay, is he lying? I wouldn’t say that. Is he foolish? I wouldn’t say that. Maybe he’s right. That’s certainly my hope. But when it splits 5–4 along ideological lines, there’s got to be some explaining to do. But I’m actually optimistic about the judiciary and the role it’s playing, especially today. Larger society has got some troubles, but I think the federal courts are acquitting themselves quite well.

SULLIVAN: Judge Tatel, you have the last word on that, and then I have a final question for you.

TATEL: I would just say about the courts, I’m not sure yet. I’ve been enormously impressed with the work of our district judges around the country. They’ve behaved like independent federal judges are supposed to. Only time will tell about our Supreme Court.

SULLIVAN: Now I have the unenviable task of having to bring this to a close because we could listen to Judge Tatel and Judge Griffith all afternoon. I’m sure you agree with me. But there’s a fourth panel member that I want to acknowledge and include in the conversation, Vixen.

Judge Tatel, you famously had a sign on your desk in chambers saying, “Ask me about my dog.” So I hereby ask you about your dog.

TATEL: I was worried you’d never ask me, Kathleen. So five years ago, when I turned 77, I was neither looking for nor expecting any life-changing experiences. But one day, my then 11-year-old grandson showed up with a podcast about guide dogs. I had been a cane traveler. Many of you in this room have known me for decades, and you knew me as a cane traveler. A lightbulb went off when I heard that tape, and, as I say in the book, the rest is history for me. And the chapter in the book that describes this experience is “The Dog That Changed My Life.”

I could talk about it for hours. I’ll just say this one thing about this magnificent creature here, who you may think is asleep — but the fact is she’s listening to every word. She’s given me a level of independence that I haven’t enjoyed in decades. I’ll just give you one example. My wife, Edie, and I, we live in the country now. We love to walk. But until I got Vixen, I could not go on country walks by myself. Now, with Vixen, we go off for two miles, three miles sometimes. Two days ago, we hiked six miles on the dirt roads of Rappahannock County. I’m able to walk by myself, that is, without another human being, and listen to the birds and the river, or I can read, or I can just think. That’s something I have not been able to do for most of my life. And it’s now possible because of this magnificent German shepherd.

SULLIVAN: Well, the metaphor of independence is certainly a wonderful way to close this magnificent panel on judicial independence.

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About the Speakers

THOMAS B. GRIFFITH served as a judge on the U.S. Court of Appeals for the D.C. Circuit from 2005 to 2020. He is now special counsel at Hunton Andrews Kurth LLP, focusing on appellate litigation, investigations, higher education, and strategic counseling.

KATHLEEN M. SULLIVAN is former chair of the appellate practice at Quinn Emanuel Urquhart & Sullivan LLP, former dean of Stanford Law School, and a renowned constitutional advocate who argued 11 cases before the U.S. Supreme Court.

DAVID S. TATEL spent nearly 30 years on the U.S. Court of Appeals for the D.C. Circuit. He is currently a senior counsel with the litigation, arbitration, and employment practice at Hogan Lovells.

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1. Bartlett v. Bowen, 824 F.2d 1240, 1246 (D.C. Cir. 1987) (Silberman, J., concurring in the denials of rehearing en banc).
2. Id. at 1247 (Bork, J., dissenting from the denial of rehearing en banc).
3. See Christopher P. Banks, The Politics of En Banc Review in the "Mini-Supreme Court," 13 J. L. & Pol'y. 377, 398 (1997) (showing a decline in en banc cases at the D.C. Circuit after 1989).
4. See National Governors Association, How to Disagree Agreeably — 2024 Winter Meeting, at 36:40 (YouTube, Feb. 24, 2024), https://duke.is/disagree-agreeably.
5. Bartlett v. Bowen, 824 F.2d 1240, 1246 (D.C. Cir. 1987) (Silberman, J., concurring in the denials of rehearing en banc).
6. Id. at 1247 (Bork, J., dissenting from the denial of rehearing en banc).
7. See Christopher P. Banks, The Politics of En Banc Review in the “Mini-Supreme Court,” 13 J. L. & Pol’y. 377, 398 (1997) (showing a decline in en banc cases at the D.C. Circuit after 1989).
8. See National Governors Association, How to Disagree Agreeably — 2024 Winter Meeting, at 36:40 (YouTube, Feb. 24, 2024), https://duke.is/disagree-agreeably.