Conservative Fifth Circuit Is an Outlier for Supreme Court

A case about the proper place to sue the US government highlights how far right the nation’s most conservative appeals court has shifted, sending more and more cases to a conservative-led Supreme Court that often doesn’t see things the same way.

Food and Drug Administration v. R.J. Reynolds Vapor Co., which is scheduled for argument Tuesday at the high court, is one of 13 cases this term out of the US Court of Appeals for the Fifth Circuit. That’s more than 20% of the Supreme Court’s current workload. The next highest number—seven cases—comes from the Fourth Circuit.

Tulane Law School professor Sally Brown Richardson said the New Orleans-based Fifth Circuit, which covers Texas, Mississippi, and Louisiana, has been in recent years the source of some of the most conservative judicial outcomes, particularly on controversial social issues.

The Fifth Circuit has been the go-to court for conservatives seeking friendly judges, particularly for advocates hoping to overturn Biden administration policies. With six of its 17 active judges appointed by Donald Trump alone, the court has been a magnet for judge shopping.

“If you’re looking for a court that’s anti-agency and pro-corporations, the Fifth Circuit is for you,” said Tulane Law School professor Sally Brown Richardson.

The US Supreme Court has already agreed to hear 13 cases from the Fifth Circuit.

Kimberly Robinson

Decisions Overruled

Cases out of the Fifth Circuit that reached the Supreme Court last term included one in which it sided with efforts to outlaw medication abortion and defund the Consumer Financial Protection Bureau. Critics claimed both were filed there with the hope of getting a favorable venue. The justices overruled the circuit in both instances.

The justices also reversed the Fifth Circuit’s grant of broad Second Amendment rights to domestic violence offenders.

E-cigarette manufacturers seeking to undo the FDA’s denial of their requests to sell flavored e-products flocked to the Fifth Circuit, which is the only federal court to acquiesce to those challenges.

The e-cigarette case centers on a federal law that allows persons “adversely affected” by the FDA’s denial to sue either in their home circuit or the D.C. Circuit, which specializes in agency challenges.

R.J. Reynolds is a North Carolina corporation, meaning that its home circuit was the Richmond, Va.-based Fourth Circuit. However, both that court and the D.C. Circuit had already rejected similar FDA denials.

The company filed instead in the Fifth Circuit, which had signaled its willingness to—and ultimately did—invalidate FDA’s denials in a separate case. That case, Food and Drug Administration v. Wages and White Lion Investments, LLC, is also before the justices this term.

To support its choice of venue, R.J. Reynolds added three tobacco retailers that are based in the Fifth Circuit. Those retailers are “adversely affected” by the FDA’s denials, the company argued.

“It was blatant forum shopping,” Dennis Henigan, of the Campaign for Tobacco-Free Kids said. Henigan filed a friend-of-the-court brief in support of the FDA.

Henigan said Congress clearly intended to limit places where companies could challenge FDA orders. It doesn’t make sense that it would have allowed companies to so easily undercut those limits, he said.

Following the Fifth Circuit’s decision to allow R.J. Reynolds to continue with its suit, there was “essentially a stampede into the circuit,” Henigan said.

Lawyers’ Duty

South Texas College of Law Houston Josh Blackman said forum shopping isn’t necessarily bad.

“Lawyers have a duty to pick the best venue for their client,” Blackman said. Given that venue rules are fairly permissive, “it is not surprising these cases are filed in Texas.”

Still, Henigan says the situation may have gotten out of hand in the Fifth Circuit. Though conservative itself with six of the nine justices appointed by Republican presidents, the Supreme Court “has repeatedly stepped in to reverse the Fifth Circuit in a number of areas,” he said.

In addition to R.J. Reynolds, the court is hearing another venue dispute out of the Fifth Circuit this term. That involves a challenge to the Environmental Protection Agency.

“It’s pretty clear that the Supreme Court has noticed that the Fifth Circuit is an outlier on a number of important of issues,” Henigan said.

Michael Bloomberg has campaigned and given money in support of a ban on flavored e-cigarettes and tobacco. Bloomberg Law is operated by entities controlled by Michael Bloomberg.