Image Source: CNN
Writer: Matthew Pennington
Editor: Rachel Kuolt
Spring 2024
Situated in part of the deep south, the Fifth Circuit Court of Appeals hears appeals from all federal cases originating from Texas, Mississippi, and Louisiana. While the Fifth Circuit may only receive appeals from three states, their decision and opinions have a nationwide reach. In the past, the Fifth Circuit has produced decisions and opinions that attempted to bring our nation towards a better future for all; however, they have now become one of the most conservative courts in this nation and must now be routinely corrected and reminded of simple jurisprudence by the Supreme Court. How did the Fifth Circuit arrive at this point? The answer to this question is in no way simple, but it is important to begin to look at the threat that the Fifth Circuit poses to precedent and the norms of the federal judiciary.
During the 2022–2023 Supreme Court term alone, the Fifth Circuit had seven of its eight decisions appealed to the Supreme Court and overturned (SCOTUS case reversal rates, 2023). These figures stand only behind the 9th Circuit Court of Appeals, which had 11 of its 14 decisions overturned. On top of this, during the 2022-2023 term, 10 of the 13 appeals for emergency relief brought by the Biden administration originated from a Fifth Circuit order or decision (Barnes, 2023). Simply put, these figures were simply unrivaled by any other court of appeals. Whenever a court is rebuked with such frequency it should be both a cause for concern and alarm.
The first reason that can help explain this is the court’s significant conservative lean. 19 of the 27 current judges on the court were appointed by a Republican president, with six of them coming from former President Donald Trump. Speaking with Bloomberg Law, Josh Blackman, a constitutional law professor at the South Texas College of Law, stated “President Trump’s nominees to the Fifth Circuit are more conservative than the appointments to the Supreme Court” (Wheeler, 2023). Even under an extremely conservative Supreme Court with hyper-originalist tendencies, decisions originating from the Fifth Circuit often go too far and must be corrected with increasing regularity.
The decisions emanating from the Fifth Circuit show plainly that this court simply cannot be trusted with neither complicated nor simple constitutional questions. Most recently, the Supreme Court has had to stay a decision that would have allowed Texas’ Senate Bill 4 (SB4) to take effect. SB4 would allow “Texas police to arrest people suspected of crossing the Texas-Mexico border illegally” (García, 2024). This bill is simply a gross slap in the face of the Constitution’s Supremacy Clause and the federal government’s sole control over immigration into the United States. Instead of correctly interpreting this state law as grossly unconstitutional, the Fifth Circuit would have allowed it to go into effect if it were not for the Supreme Court stepping in. The most striking fact is that the justice who stayed the Fifth Circuit’s decision was Associate Justice Samuel Alito, the author of Dobbs v. Jackson and one of the most conservative members of today’s high court. Even Samuel Alito, the justice who authored a decision tossing decades of precedent in order to adhere to a strict textual reading of the Constitution, saw this as a step too far.
There are very few logical explanations as to why this court is acting in this manner. Time after time, it must be corrected and reminded of simple jurisprudence, precedent, and the reading of the Constitution itself. It is unfortunate that judges on this court are often so plainly wrong on such a variety of issues. The Fifth Circuit Court of Appeals is like a train continually derailing with each passing second, and unfortunately, it does not look like anything is going to change anytime soon. Many of the most extreme judges are just beginning their careers on the court, so we all must hope the Supreme Court continues to reject the high volume of improper decisions coming from this court and never gives these flawed constitutional arguments the light of day.
References
Ballotpedia. (2019). SCOTUS case reversal rates (2007 - Present) - Ballotpedia.
Barnes, R., & Marimow, A. E. (2023, October 30). This conservative appeals court’s rulings are
testing the Supreme Court. Washington Post. https://www.washingtonpost.com/politics/2023/10/26/5th-circuit-supreme-court-reversals-decisions/
García, U. J. (2024, March 4). Appeals court reverses order blocking Texas immigration law,
setting up Supreme Court showdown. The Texas Tribune. https://www.texastribune.org/2024/03/04/texas-sb4-illegal-immigration-law-5th-circuit-court-ruling/
United States v. Texas, et al., (United States Supreme Court March 4, 2024).
Wheeler, L., & Robinson, K. (2023, June 23). Conservative Fifth Circuit Is Stumbling at US
Supreme Court. Bloomberg Law. https://news.bloomberglaw.com/us-law-week/conservative-fifth-circuit-is-stumbling-at-us-supreme-court
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