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Washington
CNN
—
The 5th Circuit Court of Appeals could very well be the source of a legal dispute if there is a last-minute battle before the Supreme Court to intervene in a high-profile case with far-reaching implications.
The deeply conservative appeals court, which oversees federal appeals in Texas, Louisiana and Mississippi, has been responsible for some of the most far-right, far-reaching decisions appealed to the Supreme Court. Many of these conflicts unfolded in so-called shadow dockets, a colloquial term for emergency applications in which the high court must decide on a fast-track timeline, without going through the full process of conferences and oral arguments.
Both the Court of Appeals and the high court are heavily tilted to the right, with appointees by former President Donald Trump steering both courts in an even more conservative direction. However, in some disputes, the Supreme Court has repeatedly faulted the Fifth Circuit far more frequently than other federal appeals courts.
The court suspended 5th Circuit rulings that blocked federal gun regulations, impeded federal immigration efforts and limited contacts between the Biden administration and social media companies.
In the latest shadow document dispute in the 5th Circuit stemming from the Biden administration’s challenge to a controversial Texas immigration law, the Supreme Court leaves the Court of Appeals’ order allowing the law to go into effect. left. But within hours, the Court of Appeals suspended enforcement of the law, after two conservatives on the Supreme Court signed a concurrence letter asking the Fifth Circuit to quickly move forward with an overhaul of the law.
The Supreme Court’s recent 5th Circuit decision, which considered the case on its merits, received a similarly lukewarm response from the justices. In the abortion pill lawsuit heard last week, several conservative lawmakers expressed skepticism of anti-abortion doctors, saying the drug passed basic procedural standards for filing a lawsuit. challenged the department’s regulations.
Judges had previously issued an emergency order allowing the current regulatory status quo for the drug to continue. This is one of at least five emergency orders issued by the Supreme Court last year that reversed or partially reversed the course taken by the Fifth Circuit.
“The Supreme Court effectively said, ‘Not only is there a strong possibility that we will reverse you, but you miscalculated your capital and leave the district court’s ruling in place while we consider it. It’s like saying, ‘We haven’t properly considered the costs,”’ said CNN Supreme Court analyst Steve Vladeck.
“And that actually suggests that the Fifth Circuit is out of tune on two different points. One is where the Supreme Court stands on fundamental substantive issues. , and the other is about where the Supreme Court stands on what the status quo should be.”Meanwhile, these substantive issues are being litigated,” said Robertson, a professor at the University of Texas School of Law. one Vladek added.
Part of this trend is that Texas is a hotbed of some of the most high-profile and high-stakes lawsuits brought against the Biden administration by Attorney General Ken Paxton and other state attorneys general who are aligned with the state. The point is that. with him.
“This is also where a lot of culture war issues are happening: abortion, guns, zoning, immigration, borders. Many of them end up in Texas, then the 5th Court, and then the Supreme Court. I went there,” said Carl Tobias, a professor at the University of Richmond School of Law.
In November, the justices heard arguments regarding the Fifth Circuit’s ruling that found the federal ban on gun possession by people under domestic violence restraining orders unconstitutional. This year, the court is also scheduled to decide major cases originating from the Fifth Circuit, which examines the scope of the federal government’s executive power, as well as large-scale disputes over social media, gun control and immigration.
Adam Feldman, a Supreme Court scholar who tracks Supreme Court-related data on his Empirical SCOTUS blog, said the rise of controversial Trump justices in the 5th Circuit has led to so many cases being reviewed by the high court. He pointed out that this is the reason why. .
In addition to appointing six of the active judges in the Fifth Circuit, President Trump also appointed about 20 Trump appointees to serve in the district courts served by the circuit.
Some of these judges tend to write separate opinions on major cases, urging the high court to take a positive view of the law.
“So I think it’s because the Fifth Circuit is going to be more of a focus in the Supreme Court’s review than ever before,” Feldman said.
There is an added incentive for Republican attorneys general and other conservative litigants to sue in the Fifth Circuit. The federal district courts in Texas are fragmented, with only one or two judges in a particular division presiding over the majority of cases.
The litigants on the right are accused of abusing the system to choose judges. Abortion drug lawsuits have been filed in these single-judge courts, and a judge appointed by President Trump has issued a pending ruling to take medication abortion pills off the market.
Vladeck pointed out that two related things are happening in parallel. That could lead right-wing groups and plaintiffs to steer their cases to the Fifth Circuit, where they might get a sympathetic panel of judges, and ultimately take those cases to the conservative-majority Supreme Court. It’s a possibility.
“Someone might say, ‘You know, where else can Texas sue?’ But the claims that Texas is making are claims that any state could make. Republicans. “State attorneys general are choosing to file these lawsuits in Texas.” “They’re doing it for a reason. And that reason is the same reason the Supreme Court is in this position right now.”
In recent weeks, the federal judiciary’s policy-making body has issued guidance encouraging courts to adopt case-assignment systems that curtail litigants’ efforts to concentrate cases with national implications in a single judicial branch. did. But the new recommendation is voluntary, and the U.S. District Court for the Northern District of Texas, where the abortion pill case was filed, said it does not intend to change its case assignment procedures.
Shadow document showdown
The tension between the Fifth Circuit’s relentless boldness and the Supreme Court’s relatively deliberative approach is most evident in the high court’s shadow proceedings, where justices suspend lower court decisions. You have only a few days to decide whether to do so or not.
One such episode stemmed from a lawsuit targeting the Biden administration’s efforts to curb online misinformation, which some Biden administration officials said could be done with social media companies. Relating to court orders restricting types of communications, partially upheld by the Fifth Circuit. After three conservative members of the high court expressed public opposition, the justices temporarily lifted the restrictions and held oral arguments in March.
Earlier this year, the Supreme Court voted 5-4 to uphold a Fifth Circuit order that blocked the U.S. Border Patrol from removing razor wire installed on the U.S.-Mexico border by Texas Governor Greg Abbott. Disabled.
There was also a dramatic controversy in late summer and early fall over the Biden administration’s regulations banning so-called ghost guns, homemade guns that cannot be traced.
The high court first voted 5-4 in August to reinstate the ban, putting on hold a trial judge’s ruling that invalidated the ban (the 5th Circuit left it alone). Two months later, the Biden administration asked the Supreme Court to intervene again after the Fifth Circuit upheld a trial judge’s ruling blocking regulations against two specific manufacturers.
U.S. Attorney General Elizabeth Preloger told the Supreme Court that these lower courts’ actions “effectively override this court’s authoritative determination of the status quo that should prevail during the appellate proceeding in this case.” said.
The Supreme Court reinstated the regulation again in a short order with no notable dissent.
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