The Supreme Court overturned about two-thirds of the decisions it considered this term from the 5th U.S. Circuit Court of Appeals, widely regarded as the nation’s most conservative appellate forum.
Court watchers say the Supreme Court, with its conservative majority, may operate just to the left of the 5th Circuit.
“The pattern we have seen this year of the Supreme Court reversing the 5th Circuit on cases that the federal government asked them to take … supports the notion the 5th Circuit, as a whole, is to the right of the Supreme Court,” said Elliot Mincberg, senior fellow at the People For the American Way.
“That was an interesting point for folks who are with this narrative that the Supreme Court is so conservative,” said Adam Feldman, Supreme Court scholar and creator of the Empirical SCOTUS blog. “Right now, in terms of a relative nature, it is probably not as conservative as the 5th Circuit.”
The Empirical SCOTUS blog said nine of the 50 challenges that the justices heard this term originated from the 5th Circuit, and the high court reversed the 5th Circuit about 66% of the time.
The 5th Circuit, headquartered in New Orleans, exercises jurisdiction over Louisiana, Mississippi and Texas. Composed of 12 Republican and five Democratic appointees, it is known as the most favorable forum for conservative litigators because its three-judge panels often include at least two Republican appointees.
Of the nine challenges from the 5th Circuit, six concerned hot-button issues such as gun rights, abortion and censorship. The high court reversed six 5th Circuit decisions:
• In Murthy v. Missouri, the high court, in a 6-3 ruling not split along ideological lines, bucked a case over whether the Biden administration colluded with Big Tech in censoring social media posts about COVID-19 and the 2020 election in violation of the First Amendment.
The 5th Circuit had ruled that conservative states and social media users had standing to sue and that federally encouraged censorship became state action. The justices reversed that and said the states and users did not have sufficient standing or legal injury to sue.
Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch would have upheld the 5th Circuit’s move, but Justice Amy Coney Barrett, who wrote the majority opinion, said simply, “The Fifth Circuit was wrong.”
• In FDA v. Alliance for Hippocratic Medicine, the justices overturned a challenge to the abortion pill, ruling that pro-life doctors did not have standing to bring the case.
At the 5th Circuit, the pro-life doctors won a challenge against the pill being dispensed through the mail and for more time during pregnancy than the Food and Drug Administration originally approved.
• In CFPB v. Community Financial Services Association of America, the Supreme Court delivered a 7-2 ruling that was a blow to conservatives who had hoped to dismantle the Consumer Financial Protection Bureau in a challenge to its funding structure. Critics said the funding scheme ran afoul of the Constitution’s appropriations clause because the CFPB was funded through the Treasury and not by Congress annually.
The high court reversed the 5th Circuit, which had said the way the CFPB is funded is unlawful.
• In United States v. Rahimi, the justices, in an 8-1 decision, upheld a restrictive firearm law. The 5th Circuit had reasoned that a federal ban on individuals under a domestic violence protective order possessing firearms ran afoul of the Second Amendment. The circuit court cited a precedent the justices issued in 2022, reasoning that gun control measures must be consistent with the nation’s founding to be lawful.
The high court ruled that the federal ban is constitutional and that dangerous people can be temporarily disarmed under the Second Amendment. Justice Barrett, a Trump appointee, said in her concurrence that the “Second Amendment is not absolute.”
• In DeVillier v. Texas, the justices said in a unanimous ruling that property owners could sue the state of Texas under the Fifth Amendment for taking their property in federal court, reversing the 5th Circuit. The appeals court had said the property owners could not pursue their federal takings claim against the state.
• In Gonzalez v. Trevino, the justices unanimously ruled for a former council member pursuing a retaliatory arrest claim against city officials in Texas.
The 5th Circuit had ruled against Sylvia Gonzalez because she couldn’t point to an example of another individual targeted for similar political conduct. The high court vacated that ruling, giving Ms. Gonzalez a chance to continue her litigation in a lower court.
She spent a day in jail after officials accused her of taking a petition during a town hall meeting. She said the petition was accidentally misplaced for a few minutes.
Meanwhile, the Supreme Court affirmed the 5th Circuit in three cases, upholding decisions to require jury trials in disputes with administrative law judges at the Securities and Exchange Commission and to halt a federal agency from banning bump stocks as machine guns under the National Firearms Act. Those cases were SEC v. Jarkesy and Garland v. Cargill, respectively.
In Campos-Chaves v. Garland, the high court affirmed the 5th Circuit in a dispute over removal notifications for illegal immigrants.
Ilya Shapiro, director of constitutional studies at the Manhattan Institute, said the justices likely weren’t searching for 5th Circuit cases to examine, and it was just coincidental that high-profile cases from that circuit ended up before the court.
“A lot of conservative or center-right legal activists who have various causes — whether social conservative, economic conservative — file their cases in the 5th Circuit looking at that court, so it is not surprising that that is where the most aggressive legal action would be,” Mr. Shapiro said.
Court watchers say more challenges from liberal jurisdictions, such as the 1st and 9th Circuits, could emerge if a Republican administration takes over after November’s elections. Liberal advocates will likely file challenges to a conservative administration’s moves in those more favorable venues.
The 1st Circuit presides over Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico. Its seven active judges were appointed by Democratic presidents.
The 9th Circuit presides over Arizona, Alaska, Hawaii, California, Oregon, Washington, Idaho, Nevada and Montana. It is composed of 16 Democratic- and 13 Republican-appointed judges.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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