Supreme Court Frustration: The Influence of a Conservative Appeals Court in the South

If there is a last-minute rush at the Supreme Court to get involved in a controversial case with significant consequences, it often originates from the 5th US Circuit Court of Appeals.

This conservative appeals court, which handles federal appeals from Texas, Louisiana, and Mississippi, has issued some of the most extreme rulings that have been challenged in the Supreme Court. Many of these disputes have occurred on the "shadow docket," where urgent applications must be decided quickly by the high court without the usual briefing and oral arguments.

The appeals court and high court are both predominantly conservative, with judges chosen by former President Donald Trump steering them in that direction. However, the Supreme Court has frequently overruled the 5th Circuit in various cases, more than any other federal appeals court.

In several instances, the Supreme Court has temporarily stopped rulings from the 5th Circuit that aimed to prevent federal gun regulations, impede federal immigration actions, and restrict the Biden administration's communication with social media firms.

In the latest shadow docket dispute involving the 5th Circuit and a controversial Texas immigration law challenged by the Biden administration, the Supreme Court allowed the law to go into effect based on an order from the appeals court. However, two conservative Supreme Court justices recommended a thorough review of the law, leading the appeals court to temporarily halt the law's enforcement.

The Supreme Court has recently shown skepticism towards rulings from the 5th Circuit that have been brought before them for review. For instance, in a recent case regarding abortion pills, conservative justices questioned whether the anti-abortion doctors challenging FDA regulations had met the necessary procedural requirements to bring the case forward.

The Supreme Court had previously issued an emergency order allowing the current regulatory status quo around the drug to continue. This decision was one of several emergency orders issued by the Supreme Court in the past year that either fully or partially reversed the decisions made by the 5th Circuit.

According to Steve Vladeck, a CNN Supreme Court analyst, the Supreme Court's actions indicate that they not only have a significant likelihood of overturning previous decisions but also believe that there has been a miscalculation of the equities involved. Vladeck noted that there has been a failure to adequately consider the costs of maintaining the district court's decision while the Supreme Court reviews it.

"It seems that the Fifth Circuit is not quite aligned with the Supreme Court on two key points," explained Vladeck, a professor at the University of Texas School of Law. The first point concerns the Supreme Court's stance on the main legal issues, while the second point relates to the Supreme Court's view on how things should be handled while those legal issues are being resolved.

The Fifth Circuit has been a focal point for controversial legal decisions in the ongoing 'culture war'.

Texas has become a hotspot for high-profile legal cases, many of which are brought against the Biden administration by Texas Attorney General Ken Paxton and other aligned state attorneys general.

According to Carl Tobias, a professor at the University of Richmond School of Law, Texas is also a battleground for culture war issues such as abortion, guns, redistricting, immigration, and the border. These issues often make their way to the Fifth Circuit Court of Appeals and eventually to the Supreme Court.

In November, the justices heard arguments on a 5th Circuit ruling that found the federal ban on gun ownership for individuals under domestic violence restraining orders to be unconstitutional. The court is also expected to make decisions this year on a significant case from the 5th Circuit that questions the extent of the federal government's administrative authority. Additionally, there are high-profile disputes on social media, gun laws, and immigration that the court will address.

According to Adam Feldman, a Supreme Court scholar who analyzes court data on his blog Empirical SCOTUS, the increase in controversial Trump-appointed judges on the 5th Circuit has led to many of its cases being reviewed by the Supreme Court.

Trump selected six judges who currently serve on the 5th Circuit Court. Additionally, there are about twenty-four judges appointed by Trump in the district courts within the circuit's jurisdiction.

Among these judges, some have a tendency to write individual opinions in significant cases, urging the Supreme Court to adopt bold interpretations of the law.

Feldman believes that the Fifth Circuit has become a more significant focal point for Supreme Court review compared to the past.

Republican attorneys general and other conservative litigants have extra reasons to file cases in the 5th Circuit. In Texas, some divisions of federal district courts have just one or two judges handling most of the cases.

Litigants on the right have been criticized for taking advantage of the system to choose their judges. In a specific case involving the abortion pill, a Trump-appointed judge at a single-judge courthouse made a decision that would have banned the medication.

Professor Vladeck highlighted two interconnected trends: Conservative groups and plaintiffs are strategically filing cases in the 5th Circuit to have a better chance of facing a sympathetic group of judges, with the ultimate goal of reaching the majority-conservative Supreme Court.

Many people may ask, "Where else could Texas file these lawsuits?" However, the claims Texas is making are claims that any state could make. It is the Republican state attorneys general who are choosing to file these lawsuits in Texas, and they have their reasons for doing so. This is the same reason why the Supreme Court finds itself in this position.

Recently, the federal judiciary's policy-making body has recommended that courts consider adopting case assignment systems to prevent litigants from directing cases with national significance to single-judge divisions. While these new recommendations are optional, the US District Court of the Northern District of Texas, where the abortion pill case was brought, has stated that it will not be altering its case assignment procedures.

Shadow docket showdowns

The clash between the 5th Circuit's assertive actions and the Supreme Court's more thoughtful process is most apparent on the high court's shadow docket. Here, the justices must quickly decide whether to stop decisions made by lower courts.

In a recent episode involving a lawsuit against the Biden administration's actions to combat online misinformation, a court order was partially upheld by the 5th Circuit. This order would have limited certain Biden administration officials' communications with social media companies. Despite three conservative justices disagreeing, the Supreme Court temporarily lifted the restrictions and held oral arguments in March.

Earlier this year, the Supreme Court voted 5-4 to remove a 5th Circuit order that had prevented the US Border Patrol from taking down razor wire erected at the US-Mexico border by Texas Governor Greg Abbott.

In late summer and early fall, there was a lot of back and forth drama regarding the Biden administration regulations on ghost guns, which are homemade firearms that cannot be traced.

The Supreme Court initially voted 5-4 in August to bring back the regulations, pausing a trial judge's decision that would have removed the ban. Two months later, the Biden administration requested the Supreme Court's help once more after the 5th Circuit upheld a trial judge's ruling blocking the regulations for two specific manufacturers.

US Solicitor General Elizabeth Prelogar informed the Supreme Court that the lower court actions went against the Court's decision on the status quo during the appellate proceedings.

In a quick order without any dissents, the Supreme Court once again reinstated the regulations.

Editor's P/S:

The 5th US Circuit Court of Appeals has emerged as a battleground for controversial legal issues, often sending cases to the Supreme Court that challenge the Biden administration's policies. The conservative court's rulings have been met with skepticism from the Supreme Court, which has frequently reversed or temporarily stopped its decisions. This dynamic underscores the deep ideological divide within the judiciary and the significance of the 5th Circuit as a focal point for cases with far-reaching implications.

The article highlights a trend of strategic case filing by conservative litigants in the 5th Circuit, where they seek sympathetic judges with a history of bold interpretations of the law. This strategy increases the likelihood of their cases reaching the Supreme Court, where a majority-conservative bench may be more receptive to their arguments. The ongoing clash between the 5th Circuit's assertive actions and the Supreme Court's more measured approach has played out on the shadow docket, where urgent applications are decided without the usual briefing and oral arguments. This process has raised concerns about the accountability and transparency of the judiciary, as well as the potential for partisan considerations to influence legal outcomes.