The Fifth Circuit Won by Losing

One of the surprising themes of the Supreme Court’s term that effectively ended this past Monday was how the U.S. Court of Appeals for the Fifth Circuit—the federal appeals court in New Orleans that hears cases from Louisiana, Mississippi, and Texas—won even as it lost. Of the 11 appeals the justices heard from that court (itself an eye-popping total), the Fifth Circuit was reversed in eight of them—the most reversals, for the second year in a row, of any court in the country from which the Supreme Court took appeals. And many of those reversals were in some of the term’s most ideologically charged cases, such as lawsuits seeking to block access to mifepristone on a nationwide basis, to invalidate the way Congress funds the Consumer Financial Protection Bureau (and a host of other agencies), and to bar the Biden administration from even talking with social-media companies about public-health-related mis- and disinformation.

But for as bad a term as the Fifth Circuit would appear to have had, it still succeeded in shoving American law far to the right. First, even when the Fifth Circuit lost, it usually picked up at least one vote (and as many as three) from the justices, validating the non-frivolousness, even if not the correctness, of its extremist reasoning. Second, the losses have the effect of making the most radical Supreme Court in our lifetime appear to be more moderate than it in fact is—with the Court’s defenders seizing upon some of the reversals of the Fifth Circuit as proof that, despite a rash of controversial, ideologically divided rulings in other cases on everything from January 6 to environmental law to homelessness, the Court really is “surprising” in its moderation. Third, and most important, the Supreme Court still affirmed three of the Fifth Circuit’s outlier rulings—all in cases in which the three more liberal justices dissented. The Fifth Circuit lost a lot—and somehow it still won.

In virtually all of the cases in which the Fifth Circuit was reversed by the Supreme Court, it lost for reasons that point to how extreme its decisions were in the first place. In two of the eight cases, the justices held that the Fifth Circuit was wrong to allow the case to go forward in the first place—holding that the plaintiffs didn’t have standing to challenge the underlying government actions, because they couldn’t show that they were directly harmed by them. One of those majority opinions was written by Justice Brett Kavanaugh; the other by Justice Amy Coney Barrett. What’s more, that made this term the third in a row in which cross-ideological majorities of the Supreme Court rejected standing that the Fifth Circuit had sustained. Standing may seem like a technical, procedural doctrine, but the net result of a court finding standing where none exists is to allow courts to review government policies that should not be up to the courts. In other words, in these cases, the Fifth Circuit is trying to arrogate to itself new constitutional power, and the Supreme Court could not help but reject at least this blatant abuse of authority.

[Erwin Cherminsky: Once again, originalism’s hollow core is revealed]

In three of the other reversals, cross-ideological majorities expressly repudiated the Fifth Circuit for taking an overly formalistic approach to constitutional interpretation. In one case, Justice Clarence Thomas led a 7–2 majority in holding that the Fifth Circuit had botched founding-era understandings when it concluded that Congress lacked the power to appropriate funds to government agencies simply by capping how much they could spend. In a second case, Chief Justice John Roberts held for an 8–1 majority that the Fifth Circuit had taken too wooden an approach to constitutional history and tradition in looking for founding-era analogues for the current federal ban on gun possession by those subject to domestic-violence-related restraining orders. The Fifth Circuit’s impossibly rigid originalism was too much for even this group of justices.

And in a third, Kavanaugh and Barrett signed on to a majority opinion by Justice Elena Kagan that repeatedly chastised the Fifth Circuit for flubbing basic (and settled) principles of First Amendment law when it upheld a Texas statute that limited when social-media companies could engage in content moderation. In a ruling that sought to clarify how well-established First Amendment principles apply in such cases, Kagan noted that the need for such clarification “is especially stark for the Fifth Circuit,” so that court could be kept “from repeating its errors.”

The upshot is that it’s not just the liberal justices who are taking issue with the conservative judges on the Fifth Circuit; it’s the conservatives too, on the grounds that the Fifth Circuit isn’t even doing originalism right.

Yet for all of its losing, the Fifth Circuit is still winning. Consider the three cases in which the justices affirmed the court’s rulings. In Garland v. Cargill, the Court resolved a disagreement among circuit courts in the Fifth Circuit’s favor, holding that the federal government could not prohibit bump stocks because, even though they enable automatic rifles to fire up to 1,000 rounds a minute, they are not tantamount to (already prohibited) machine guns. For a 6–3 majority that split the justices down ideological lines, Thomas, relying on diagrams from a radical pro-gun lobbyist group, said small mechanical differences in how machine guns and bump stocks work were sufficient to distinguish them. In Campos-Chavez v. Garland, the Court resolved a circuit split over how much notice immigrants are entitled to receive about deportation hearings. For a 5–4 majority (with Justice Neil Gorsuch joining the liberal justices in dissent), Justice Samuel Alito said, essentially, “Not much.” And most important, in Securities and Exchange Commission v. Jarkesy, a 6–3 ideologically divided Court held that the right to a jury trial in civil cases under the Seventh Amendment, long a moribund constitutional constraint, prohibits the SEC from conducting certain kinds of civil-enforcement proceedings within the agency, rather than in the courts.

Jarkesy may be a technical ruling, but it will significantly curtail the federal government’s ability to seek civil fines without going through the burden of civil litigation—by embracing a novel constitutional argument that only the Fifth Circuit had previously endorsed. If anything, the win in Jarkesy was even bigger, because the justices simply refused to address the other two novel constitutional arguments the Fifth Circuit had embraced in its ruling—that Congress couldn’t delegate enforcement power to the SEC in the first place, and that an agency’s previously independent judges had to be subject to direct political control. That means those holdings remain the law in Louisiana, Mississippi, and Texas (in conflict with the law in other parts of the country), creating inconsistencies that the Supreme Court will soon have to resolve.

In other words, even as it got pummeled in the majority of cases that the Supreme Court heard, the Fifth Circuit still succeeded in shifting American law meaningfully further to the right—on guns, deportation proceedings, and administrative law. These are not fringe, unimportant areas of American law. And even in the other cases in which it lost, it at least got the Supreme Court to weigh in—including in cases in which two, three, or even four justices ended up endorsing what the court of appeals had done. Those votes can still matter over time, because dissenting opinions can insert those arguments into the mainstream and give them added credibility going forward.

What is so striking—and so galling—about this pattern is the bottom line it underscores: Judicial review is becoming less about consistent application of neutral principles and more about which outcomes judges prefer. The Fifth Circuit’s track record does not reflect a consistent view of the Constitution, or of who the right plaintiffs are, or of the right way to interpret statutes; the best explanation for the Fifth Circuit’s output is about who’s winning and who’s losing—whether the court is politically sympathetic to the claim being brought by the plaintiffs or not. Take the standing example: The Fifth Circuit continues to strictly limit standing when the plaintiffs are, for example, conventional civil-rights plaintiffs. The shift is not about changing the doctrine; it’s about manipulating the doctrine if, and only if, the right plaintiffs are challenging the right governmental conduct. That’s why these cases all tend to involve a combination of outlier state laws in Texas or suits by right-wing litigants trying to overturn actions by a Democratic U.S. president. Left-leaning plaintiffs never fare as well in the New Orleans appeals court—even when they’re asking for similar relief, or making similar arguments about why they have standing.

It’s also no accident that the Supreme Court chose to take up these cases at all. With very narrow exceptions, the Court does not have to hear any particular appeal—Congress has given it broad discretion to exercise its appellate jurisdiction or not as it sees fit. In some of these cases, the Fifth Circuit is forcing the Supreme Court’s hand—by producing a ruling so flagrantly wrong that to allow it to stand would be ludicrous. But in some cases, the granting of certiorari in itself betrays the Supreme Court’s political sympathies. In reasoning its extremist rulings as it does, the Fifth Circuit communicates with the conservative bloc on the Court. And just as Kagan sends her warnings to the lower court via her opinions, the six conservative justices send their own signals of encouragement.

[Noah Rosenblum: The Supreme Court won’t stop dismantling the government’s power]

The full picture reveals just how radical the Fifth Circuit has become—too radical for even the most right-wing Supreme Court in generations. But inasmuch as headlines declare that the Supreme Court is pushing back against that radicalism, beneath the surface, the Fifth Circuit is still moving the needle when it’s losing—away from the rule of law, and toward the rule of right-wing political preferences.