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If the 5th U.S. Circuit Court of Appeals was a boxer, you’d bet on the other guy.
The 5th Circuit, which hears appeals from Texas, Louisiana and Mississippi, had three rulings upheld by the U.S. Supreme Court, and eight overturned, more than any other court this term. The conservative circuit court saw its rulings on abortion medication, gun control, administrative power and social media moderation all rejected by the Supreme Court.
Justice Brett Kavanaugh cautioned that the 5th Circuit was taking the judiciary down “an uncharted path.” Chief Justice John Roberts said they were “slaying a straw man.” Justice Clarence Thomas, the most conservative member of the court, authored two opinions rejecting the 5th Circuit’s interpretation of the law.
The New Orleans-based 5th Circuit leaned to the right even before President Donald Trump appointed six judges to the bench. The new judges, many of whom trained in Texas’ conservative legal circles, have attracted a slew of ideologically-aligned cases.
“One of the most conservative Supreme Courts we've ever had is still repudiating right-leaning decisions from the most conservative appeals courts in the country,” said Steve Vladeck, a law professor at Georgetown University. “But even then, it’s doing so in cases that should never have gotten to the Supreme Court in the first place.”
Just because these rulings ultimately got knocked down at the Supreme Court doesn’t mean the 5th Circuit is toothless, Vladeck said.
“These rulings have the effect of taking legal theories that were off the wall, and putting them on the wall,” he said. “Even when they’re losing, the effect is to make these cases of national import and give credibility to those arguments.”
The Texas two-step
The story of how the 5th Circuit comes to rule on so many conservative cases starts far away from the John Minor Wisdom federal courthouse in New Orleans. It starts in a handful of district courts in remote parts of the three-state region, where, due to geography and population distribution, only one federal judge hears all or nearly all of the cases.
In Amarillo, it’s U.S. District Judge Matthew Kacsmaryk. In Lubbock, Judge Wesley Hendrix. In Victoria, Judge Drew Tipton. These judges share something beyond professional isolation — they were all appointed by Trump based on their conservative legal bonafides.
When a group of anti-abortion doctors wanted to revoke the Food and Drug Administration’s approval of mifepristone, a common abortion-inducing drug, they filed the case in Amarillo.
Kacsmaryk’s ruling, in which he referred to doctors as “abortionists” and the process of a medication abortion as “starv[ing] the unborn human until death,” was unprecedented in revoking a medication’s long-standing FDA approval. Kacsmaryk overruled the government’s argument that the doctors who brought the lawsuit did not have the legal right to sue, known as standing.
“The associations’ members have standing because they allege adverse events from chemical abortion drugs can overwhelm the medical system and place ‘enormous pressure and stress’ on doctors during emergencies and complications,” Kacmsaryk wrote.
This ruling would have resulted in mifepristone being removed from the market, throwing abortion and miscarriage care into chaos nationwide. But the U.S. Supreme Court intervened, ruling that the medication could remain on the market while the case moved through the system.
The case then went to the 5th Circuit. The three-judge panel, two Trump appointees and one President George W. Bush appointee, agreed that the plaintiffs did have standing to sue. The appeals court ruling would have allowed mifepristone to remain on the market with significant restrictions.
In its first abortion ruling after overturning Roe v. Wade, the Supreme Court unanimously rejected the 5th Circuit’s ruling and found the doctors who sued did not have standing. Justice Kavanaugh, a Trump appointee, quoted conservative legal icon Justice Antonin Scalia in authoring the opinion.
“As Justice Scalia memorably said, [standing] requires a plaintiff to first answer a basic question: ‘What’s it to you?’” Kavanaugh wrote. “For a plaintiff to get in the federal courthouse door and obtain a judicial determination of what the governing law is, the plaintiff cannot be a mere bystander, but instead must have a ‘personal stake’ in the dispute.”
The 5th Circuit was advancing an “unprecedented and limitless approach” to standing, Kavanaugh wrote, which would “seemingly not end until virtually every citizen had standing to challenge virtually every government action that they do not like.”
“Citizens and doctors who object to what the law allows others to do may always take their concerns to the Executive and Legislative Branches and seek greater regulatory or legislative restrictions on certain activities,” Kavanaugh wrote.
Justice Amy Coney Barrett, another Trump appointee, similarly chided the 5th Circuit for its interpretation of standing on a Louisiana case, Murthy v. Missouri. In that case, the attorneys general of Louisiana and Missouri and five individuals accused the Biden administration of pressuring social media companies to censor information during COVID. They filed the lawsuit in Monroe, Louisiana, a city of 47,000 people, where Trump-appointed Judge Terry Doughty hears most cases.
Doughty ruled that the plaintiffs had standing, and the 5th Circuit agreed. Barrett, on behalf of the Supreme Court, did not.
“This theory is startlingly broad, as it would grant all social-media users the right to sue over someone else’s censorship — at least so long as they claim an interest in that person’s speech,” Barrett wrote. “This Court has never accepted such a boundless theory of standing.”
“These are lawsuits that should never have been lawsuits,” Vladeck said. “By holding that these plaintiffs do have standing, the 5th Circuit is allowing the federal courts to decide cases they have no business deciding.”
It’s not just standing. In a case concerning whether domestic abusers can be barred from possessing guns, Chief Justice John Roberts overturned the 5th Circuit and noted that “some courts have misunderstood the methodology of our recent Second Amendment cases.”
Thomas overturned a 5th Circuit ruling that found the funding structure of the federal Consumer Financial Protection Bureau was unconstitutional. And on the last day of the term, the Supreme Court ruled that the 5th Circuit had failed to adequately assess whether a new Texas social media law was constitutional.
Josh Blackman, a professor at South Texas College of Law, said these rulings reflect the simple fact that the 5th Circuit is to the right of the Supreme Court.
“Every judge takes an oath to the Constitution, and I think the judges in the 5th Circuit, and really all the courts, have very strong views on what the Constitution means,” Blackman said. “The Supreme Court disagrees on that. That's their call.”
The Supreme Court did allow the 5th Circuit’s rulings to stand in three cases this term, including the overturn of a Trump-era rule that banned bump stocks under the federal machine gun ban. The Supreme Court’s conservative majority also upheld the 5th Circuit’s ruling in a case involving the U.S. Securities and Exchange Commission.
What does it mean?
By staking out such conservative positions, even ones that get overturned in the end, the 5th Circuit has shifted the nation’s jurisprudence to the right.
“Litigants deliberately steer lawsuits that could have been brought anywhere into single judge divisions in the 5th Circuit,” Vladeck said. They get favorable lower court rulings that make for great press. They get fairly favorable 5th Circuit rulings. Maybe they lose in the Supreme Court, but look at how much they've done, look at how much they've accomplished by that point.”
One side effect of this cat-and-mouse game, Vladeck said, is the Supreme Court gaining a reputation as a “profoundly centrist institution” because it blocks the 5th Circuit’s most extreme rulings.
This repeated repudiation from the Supreme Court is unlikely to impact how the 5th Circuit rules going forward.
“The judges of the 5th Circuit don’t work for the Supreme Court anymore than I work for you,” Blackman said. “It’s a myth that the 5th Circuit will say, ‘Oh man, I got reversed. Maybe I should rule differently next time.’”
The job of an appellate judge is not to try to guess what opinions would be upheld by the Supreme Court, Blackman said. But the string of legal losses may still have an impact on how this legal strategy plays out going forward.
“It’s not surprising that conservative litigants are getting more aggressive because you have a conservative Supreme Court,” said Blackman “But three years in, there have been a lot of cases that just did not yield success. Do they reevaluate and reassess? Or do they keep bringing these cases even when the Supreme Court keeps saying, ‘Go away. Go away. Go, we don't want these cases.’”
Despite taking a tone in recent rulings, the Supreme Court has not taken steps to more formally express its displeasure with the 5th Circuit.
“There's a sizable cohort of judges on the 5th Circuit whose basic attitude is, you know, ‘damn the torpedoes, full speed ahead,’” Vladeck said. “In prior eras, that kind of behavior from a lower court would have elicited not just reversals from the Supreme Court, but a pretty stern lecture, and we haven't had that yet.”
It may be that, in some cases, conservative justices appreciate the chance to engage on legal issues that otherwise wouldn’t come before the court. When the Supreme Court heard the mifepristone case, for example, justices Thomas and Alito both raised the specter of the Comstock Act. These 19th century anti-obscenity laws have been essentially defunct for more than 100 years, but conservative lawyers have been trying to revive them to further restrict access to abortion.
Neither the original case, nor the eventual ruling from the Supreme Court, hinged on the Comstock Act. But the hearing offered an opportunity to bring the issue onto the most significant legal stage the country has.
“The cumulative effect of all of this is to exert a whole lot of pressure on the legal system in one direction,” Vladeck said.
Just in: Former U.S. Rep. Liz Cheney, R-Wyoming; U.S. Sen. John Fetterman, D-Pennsylvania; and Oklahoma Gov. Kevin Stitt will take the stage at The Texas Tribune Festival, Sept. 5–7 in downtown Austin. Buy tickets today!