A conservative appeals court in the South seems to be exasperating the Supreme Court
By Devan Cole and Tierney Sneed, CNN
Washington (CNN) — If there is a down-to-the-deadline scramble at the Supreme Court to intervene on a hot-button case with far-reaching implications, there is a good chance that the 5th US Circuit Court of Appeals is the source of the legal fracas.
The very conservative appeals court – which oversees federal appeals arising from Texas, Louisiana and Mississippi – has been responsible some of the most far-right, sweeping rulings that have been appealed to the Supreme Court. Many of those clashes have played out on the so-called shadow docket, the colloquial term for emergency applications that high court must decide on a quick timeline, without the full process of briefing and oral arguments.
The appeals court and the high court both lean heavily to the right – with appointees installed by former President Donald Trump taking both courts in an even more conservative direction. Yet in some disputes, the Supreme Court repeatedly batted down the 5th Circuit at a frequency that far exceeds that of other federal appeals courts.
The court has paused 5th Circuit rulings that would have blocked federal gun restrictions, interfered with federal immigration activity and limited Biden administration contact with social media companies.
In the most recent shadow docket dispute to arise out of the 5th Circuit, stemming from a Biden administration challenge to a controversial Texas immigration law, the Supreme Court left in place an order from the appeals court that would allow the law to take effect. But two of the Supreme Court’s conservatives signed a concurrence that urged the 5th Circuit to quickly move forward with a fuller review of the law, and within hours, the appeals court paused the law’s enforcement.
Rulings from the 5th Circuit that the Supreme Court has recently reviewed on the merits have gotten a similarly frosty reception from the justices. In an abortion pill case heard last week, multiple members of the conservative bloc were skeptical anti-abortion doctors bringing the challenge to US Food and Drug Administration regulations of the drug had cleared a basic procedural threshold for bringing the case.
The justices had previously issued an emergency order allowing the current regulatory status quo around the drug to continue. It was one of at least five emergency orders the Supreme Court has issued in the last year that reversed or partially reversed the course taken by the 5th Circuit.
“The Supreme Court is effectively saying, ‘Not only is there a significant chance we’re going to reverse you, but you have miscalculated the equities, you have failed to adequately weigh the costs of leaving the district court’s decision in place while we consider it,’” Steve Vladeck, a CNN Supreme Court analyst, said.
“And so, it’s suggesting that actually, the Fifth Circuit is out of kilter in two different respects: One about where the Supreme Court is on the underlying substantive questions, and one about where the Supreme Court is on what the status quo ought to be while those substantive questions are litigated,” added Vladeck, who is a professor at University of Texas School of Law.
A hot bed of ‘culture war’ legal rulings
The trend has been driven in part by how Texas has become a breeding ground for some of the most high-profile, high-stakes legal cases, often brought against the Biden administration by Texas Attorney General Ken Paxton and other state attorneys general who are aligned with him.
“It’s also a place where what I see is a lot of the culture war issues: Abortion, guns, redistricting, immigration and the border. A lot of those ended up in Texas and then on to the Fifth and then onto the Supreme Court,” said Carl Tobias, a professor at the University of Richmond School of Law.
In November, the justices heard arguments on a 5th Circuit ruling that deemed unconstitutional the federal prohibition on gun ownership by people who are under domestic violence restraining orders. The court is also set to decide this year a major case arising from the 5th Circuit that examines the reach of the federal government’s administrative authority, as well as blockbuster disputes concerning social media, gun laws and immigration.
Adam Feldman, a Supreme Court scholar who tracks data related to the court on his Empirical SCOTUS blog, pointed to the rise of controversial Trump judges on the 5th Circuit as a reason for why so many of its cases have come under review by the high court.
Trump appointed six of the of the active judges on the 5th Circuit, in addition to some two-dozen Trump appointees who sit in the district courts the circuit covers.
Some of those judges have developed a penchant for writing separate opinions in major cases calling on the high court to take aggressive views of the law.
“So, you know, I think that that’s made for the Fifth Circuit being a more focal point in terms of the Supreme Court review than it had been in the past,” Feldman said.
There are additional incentives for Republican attorneys general and other conservative litigants to file in the 5th Circuit. Federal district courts in Texas are broken up in a way that, in certain divisions, just one or two judges are assigned the vast majority of cases.
Litigants on right have been accused of exploiting that system to pick their judges. The abortion pill case was filed in one such single-judge courthouse, and the judge, a Trump-appointee, issued a now-paused ruling that would have taken the medication abortion drug off the market.
Vladeck pointed to two related things happening in tandem: Right-wing groups and plaintiffs steering cases to the 5th Circuit where they might get a sympathetic panel of judges and perhaps eventually getting those cases before the majority-conservative Supreme Court.
“Someone might say, ‘You know, where else is Texas supposed to sue?’ but the claims Texas is bringing are claims any state could bring. The Republican state attorneys general are choosing to bring these lawsuits in Texas,” he said. “They’re doing it for a reason. And that reason is the same reason why the Supreme Court is now in this position.”
In recent weeks, the federal judiciary’s policy-making body issued guidance encouraging courts to adopt case assignment systems that would curb the effort by litigants to funnel cases with national consequences to single-judge divisions. The new recommendations are optional, however, and the US District Court of the Northern District of Texas – where the abortion pill case was filed – has said it will not make changes to its case assignment protocols.
Shadow docket showdowns
The tension between the 5th Circuit’s unrelenting boldness and the Supreme Court’s relatively more deliberative approach is most evident on the high court’s shadow docket, where the justices have only days to decide whether to pause rulings from the lower court.
One such episode, arising from a lawsuit targeting the Biden administration’s efforts to curb online misinformation, concerned a court order partially upheld by the 5th Circuit that would have restricted the types of communications certain Biden administration officials could have with social media companies. The justices – over the public dissent of three conservative members of the high court – temporarily lifted the restrictions and heard oral arguments in March.
Earlier this year, a 5-4 Supreme Court wiped away a 5th Circuit order that blocked the US Border Patrol from removing razor wire set up at the US-Mexico border by Texas Gov. Greg Abbott.
There was also the dramatic back and forth in the late summer and early fall over the Biden administration regulations banning so-called ghost guns, which are untraceable homemade firearms.
The high court first voted 5-4 to reinstate the regulations in August, putting on pause a trial judge’s ruling – left undisturbed by the 5th Circuit – that would have invalidated the prohibition. Two months later the Biden administration asked the Supreme Court to intervene again after the 5th Circuit let stand a trial judge’s ruling blocking the regulations for two particular manufacturers.
Those lower court actions, US Solicitor General Elizabeth Prelogar told the Supreme Court, “effectively countermanded this Court’s authoritative determination about the status quo that should prevail during appellate proceedings in this case.”
The Supreme Court revived the regulations yet again, in a brief order with no noted dissents.
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