District of Columbia Courts Explained

President Biden last month nominated two judges to the DC Court of Appeals. If appointed, the two new judges would bring the Biden nominees on that court to five of nine total judges. 

Washington, DC, may not be a state, but it has its own local government and court system.  When Congress created the DC courts, it intended for them to function analogously to state courts. These courts decide a wide range of issues, from due process in employment termination to the proper scope of search warrants. These decisions impact the daily lives of the nearly 700,000 people who call DC home — more than both Wyoming and Vermont. 

This explainer provides a brief overview of the District of Columbia courts, as well as some of the similarities and differences between DC courts and state courts.

What is the District of Columbia? 

Washington, DC, is neither a state nor a territory of the United States. Instead, it is a federal district established pursuant to Congress’s authority under Article I, Section 8, of the Constitution, which authorizes Congress to establish a federal capital district over which it has the power to “exercise exclusive legislation.” 

For most of DC’s history, Congress directly governed its local affairs without input from DC residents. This began to change in 1961 when the ratification of the 23rd Amendment allowed DC citizens to vote in presidential elections. In 1970, Congress passed the District of Columbia Delegate Act, allowing DC residents to elect a nonvoting delegate to the House of Representatives, similar to the nonvoting delegates of the U.S. territories like Puerto Rico. 

Soon afterward, the Home Rule Act of 1973 permitted DC residents to elect their own mayor and city council to pass local laws. However, under the act, Congress and the president retain the authority to disapprove laws enacted by local DC government, which they have done four times, most recently in March 2023 when President Biden signed into law a measure reversing a DC Council bill overhauling the criminal code. Congress also exerts significant influence over local DC government through the appropriations process.

What courts make up the DC court system?

In 1970, Congress passed the District of Columbia Court Reform and Criminal Procedure Act, which established a local DC court system. Today, DC has a high appellate court called the DC Court of Appeals, which consists of a chief judge and eight associate judges, and a trial court called the Superior Court of DC, which has several divisions, including civil, criminal, domestic violence, family social services, probate, special operations, and tax. 

Under DC’s Home Rule Act, the superior court is a trial court with jurisdiction over any civil action or other matter brought in the district, as well as all criminal cases under laws that apply exclusively to the district. The DC Court of Appeals has jurisdiction over appeals from the superior court; certain decisions made by DC’s agencies, boards, and commissions; and legal questions about DC law certified by federal and state appellate courts. 

Although the DC courts share many similarities with state courts, federal law does not uniformly define “state court” to include them. As a result, courts are sometimes required to determine whether an undefined reference to “state courts” includes the DC courts. This ambiguity can lead to inconsistent results. For example, the U.S. Court of Appeals for the Ninth Circuit’s recent decision in Eldridge v. Howard created a circuit split as to whether a DC trial court was a “state court” for purposes of federal habeas corpus law, affecting whether certain jurisdictional requirements must be met before a court grants relief. 

How are DC judges appointed? 

Unlike state court judges, DC judges are appointed to an initial 15-year term by the president with the advice and consent of the Senate from a list recommended by DC’s Judicial Nominating Commission. DC judges may be reappointed by the president without Senate approval if DC’s Commission on Judicial Disabilities and Tenure determines a judge is qualified for reappointment. That commission also has the authority to investigate complaints of judicial misconduct and to commence proceedings to suspend, retire, or remove DC judges. 

Both DC’s nominating commission and disciplinary commission are comprised of seven members: one appointed by the president, two appointed by the DC bar, two appointed by DC’s mayor, one appointed by DC’s council, and one appointed by the chief judge of the U.S. District Court for the District of Columbia. 

This nominating and disciplinary structure is unique in several respects. First, DC is the only jurisdiction in which a judicial disciplinary commission makes reappointment recommendations. Second, none of the states that use judicial nominating commissions authorize federal officials to appoint commission members. Third, no state requires that local judges be nominated by the president and approved by the Senate. As a result of this structure, DC residents exert far less influence over the selection of their judges than residents of the 50 states, who either elect their judges or whose judges are appointed by their governor or legislature, often with the input of a nominating commission. 

What is the relationship between DC courts, federal laws, and federal courts?

Although the appointment structure for DC judges is unique among states, in other ways, DC courts function similarly to state courts. The DC Court of Appeals calls itself “the equivalent of a state supreme court,” with final authority over interpretations of local DC law. 

The Supreme Court affirmed this in 1974 in Pernell v. Southall Reality. There, the Court noted its long-standing “reluctance to review decisions of the courts of the district involving matters of peculiarly local concern” and clarified that DC court decisions “on matters of local law — both common law and statutory law — will be treated by this Court in a manner similar to the way in which we treat decisions of the highest court of a State on questions of state law.”

However, because Congress maintains an active role in legislating on matters in the district, the DC courts are sometimes in the position of interpreting federal statutes that function like DC law, in that the statutes solely concern DC. This raises a complex set of questions about the extent to which federal courts should defer to DC courts’ interpretations of such laws. 

One of the core issues in Pernell was whether the Supreme Court would defer to the DC Court of Appeals’ interpretation of the District of Columbia Court Reform and Criminal Procedure Act, a federal statute that overhauled DC’s judicial system. The Supreme Court held that it owed deference to the DC Court of Appeals’ interpretation of that law and, more generally, “to their interpretation of Acts of Congress directed toward the local jurisdictions.” 

However, just a few years later in Whalen v. U.S., the Supreme Court reopened the door to federal review in certain similar cases. While the Court acknowledged its prior ruling in Pernell, it clarified that such deference “is a matter of judicial policy, not a matter of judicial power.” In that case, it declined to defer to the DC Court of Appeals’ interpretation of a federal statute that codified felony murder in DC because the Court could not decide the federal constitutional question at issue without also deciding the meaning of the federal statute.

Has DC ever come close to obtaining statehood and its own constitution? 

The Home Rule Act is sometimes referred to as DC’s “de facto constitution,” but DC has no operative constitution. In 1982, residents ratified a constitution that would have established DC as a state and submitted it to the president and Congress for approval. The constitution contained analogues to the federal Bill of Rights and a host of positive rights, such as the right to equal pay for equal work and the right to employment or a basic income. It also would have established the legality of affirmative action to correct past discrimination against women and people of color. 

In 1987, the DC Council revised the 1982 constitution and enacted a law recommending the amended constitution to Congress. However, Congress never passed a law approving these bids for statehood, so neither constitution went into effect. 

In 2016, DC residents overwhelmingly passed a ballot measure advising the DC Council to petition Congress to establish DC as a state and to approve a new state constitution to be adopted by the Council. The new constitution enrolled by the DC Council contains a bill of rights and articles establishing the legislative, executive, and judicial branches of government. However, like the 1982 and 1987 constitutions, the 2016 constitution is not in effect because Congress has not passed a law approving it. 

In 2020 and again in 2021, the House passed a bill that would have granted DC statehood. The bill was reintroduced in the 118th Congress.

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DC courts hold a unique status in our democracy. While they function similarly to state courts in many respects, they remain decidedly unlike state courts in at least two significant ways: DC residents have limited power over the selection of their judges, and there is no operative DC constitution that DC courts could interpret to provide state constitutional protections independent of those afforded by the federal Constitution. Nevertheless, the DC courts are important and powerful bodies that hear thousands of cases each year at both the trial and appellate levels.

Michael Milov-Cordoba is a counsel at the Brennan Center for Justice.

Suggested Citation: Michael Milov-Cordoba, District of Columbia Courts Explained, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sep. 22, 2023, updated May 13, 2024), https://statecourtreport.org/our-work/analysis-opinion/district-columbia-courts-explained.