Most Americans know about the Supreme Court, and many are aware of the U.S. Court of Appeals for the District of Columbia Circuit, often labeled the second highest court in the land. Yet few, outside of lawyers, journalists and the odd legal aficionado, are familiar with the 5th U.S. Circuit Court of Appeals.
The New Orleans-based court has been the driving force behind many contentious Supreme Court cases over the past five years.
The case that overturned Roe v. Wade and upended 50 years of abortion law came from the 5th Circuit. So have the significant challenges to President Biden’s immigration policies. Challenges to the legality of the chemical abortion pill and a gun control law have also risen from the 5th Circuit to land on the Supreme Court docket.
In each case, the 5th Circuit judges have plowed new constitutional ground, forcing the Supreme Court to tackle issues that some justices would prefer to let alone.
Still bubbling up from the circuit’s judges are a case on Texas’ floating border wall in the Rio Grande and a case ordering the White House and the FBI to stop colluding with social media companies to censor Americans’ viewpoints.
“The 5th Circuit, whether you love it or hate it, is providing a service to the nation,” said Curt Levey, president of the Committee for Justice. “These are all important issues the [Supreme] Court should hear.”
Many people seem to abhor the 5th Circuit, which encompasses Louisiana, Texas and Mississippi. Immigrant rights advocates, in particular, have blasted the court’s “cruel” rulings on border security. The left-wing web outlet Vox said the court was full of “judicial arsonists.”
A case before the justices Tuesday challenged the way Congress set up the Consumer Financial Protection Bureau, a Wall Street regulator established in the wake of the Great Recession from December 2007 to June 2009.
Conservatives have long complained that the CFPB has too little political accountability, stemming from the agency’s authority to set its budget outside the annual appropriations process on Capitol Hill.
The 5th Circuit agreed with those complaints and ruled the funding scheme unconstitutional.
Most Supreme Court justices were skeptical during oral arguments, suggesting that Congress has wide latitude in deciding how to fund agencies, including giving them significant leeway to spend what they need.
“Standing appropriations aren’t per se unconstitutional,” said Justice Amy Coney Barrett, a Trump appointee.
The federal judiciary has a three-tiered, pyramidal structure. The district courts, also known as the trial courts, are where 677 active judges and dozens more senior judges hear tens of thousands of cases each year. As the name suggests, this is where trials are held to explore the evidence in criminal and civil matters.
The Supreme Court sits at the top of the pyramid, and its nine justices hear fewer than 100 cases a year.
In between are the 13 circuit courts of appeals, where 179 active judges and dozens more senior judges hear every appeal from district courts. Unlike the Supreme Court, they don’t have the luxury of picking cases. They don’t hold trials but rule whether district courts botched the facts or wrongly applied the law.
Because the Supreme Court doesn’t take every appeal, the circuit courts do most of the heavy legal lifting.
The 9th U.S. Circuit Court of Appeals, based in California, often gets attention as the most liberal. The high court has repeatedly slapped down its rulings.
For sheer force of judicial willpower, the 5th Circuit is the premier court in the land, forcing the justices to confront big issues of the day.
Legal analysts said that’s partly because of the makeup of the court.
Of the 5th Circuit’s 16 active judges, four were appointed by Democratic presidents, including one by President Biden. The others comprise six Trump appointees, four George W. Bush appointees and two Reagan appointees.
Add in the eight senior judges, who help with some cases, and the ratio is even more skewed toward Republican appointees.
The structure of lower courts in the 5th Circuit, particularly in Texas, allows plaintiffs to “judge shop,” or search for a court to file a lawsuit knowing they have a good chance of ending up with a particular judge most likely to issue a favorable ruling.
Conservatives have made good use of judge shopping, said Elliot Mincberg, senior fellow at People For the American Way, a liberal advocacy group.
“You can effectively almost guarantee what judge you’ll get depending on where you file,” Mr. Mincberg said.
He said the circuit is “dominated by far-right Trump-appointed judges” who are further to the right than the Supreme Court.
“Their decisions, many of them, effectively have nationwide impact,” Mr. Mincberg said.
Adam Feldman, Supreme Court scholar and creator of the Empirical SCOTUS blog, said the 5th Circuit has some of the “most well-known conservative appeals court judges” and the high court could be taking signals from how they frame the issues, such as abortion.
“There were several abortion petitions out there, but the [5th Circuit] judges spotlit the abortion issue for the justices in their decision. The way that [the 5th Circuit] judges frame the issues might also help the justices see why such cases are important, especially as the judges bring constitutional elements into cases which naturally lend well to [Supreme Court] review,” Mr. Feldman said.
He noted that most 5th Circuit cases before the Supreme Court in the last term were overturned.
Among those reversals were a decision siding with states that challenged the preference for American Indian families in the adoption of American Indian children and a decision ruling that Homeland Security Secretary Alejandro Mayorkas was breaking immigration law by ordering his department not to target most illegal immigrants for arrest and deportation.
Overall, seven of the nine Supreme Court cases that arose from the 5th Circuit were reversed in the 2022 term and also in the term before that.
By comparison, the 9th Circuit was reversed 22 times out of 25 cases in the 2021-2022 terms.
Among the 5th Circuit cases at the high court this term is a gun rights case in which the appeals court ruled that a crucial part of federal gun control law is unconstitutional.
A 2021 Supreme Court decision reaffirmed the personal right to bear arms and created a history-based test for what kinds of gun restrictions can survive constitutional scrutiny. The 5th Circuit, relying on that ruling, said it invalidates the federal prohibition on gun possession by people under court domestic violation restraining orders.
The circuit court judges said the situation would have been different had the person been convicted of a violent crime, but a civil restraining order doesn’t preclude someone from the constitutional right to bear arms.
The Biden administration has asked the justices to intervene in a 5th Circuit case involving the Food and Drug Administration’s approval of mifepristone, the chemical abortion pill.
The Supreme Court has not acted on that appeal, but the justices have stayed lower court rulings while the case develops.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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