Conservatives Gain Despite Fifth Circuit Setbacks at High Court

The most conservative US appeals court still managed to push the law further to the right incrementally despite repeated smackdowns from the Supreme Court.

Even as it has reversed or vacated six out of nine Fifth Circuit decisions so far, the justices undercut the Securities and Exchange Commission’s ability to enforce its laws and rejected a federal ban on bump stock devices, which make semi-automatic rifles fire like machine guns.

Those tracking the rulings said that while the federal appeals court didn’t have a winning record before the justices this term, the Supreme Court has remained somewhat receptive to rulings from a group of conservative judges on the circuit.

“It’s easy to kind of look at the record and say, ‘Wow this Supreme Court is really reining in an extreme Fifth Circuit,’” said Jeevna Sheth, senior policy analyst at the progressive Center for American Progress. But looking closer at the SEC and bump stock rulings, she said it’s pretty clear the justices are agreeing along ideological lines to deregulate federal agencies.

A ruling against three immigrants in a fight with the government over incomplete deportation hearing notices was another win for the Fifth Circuit, Sheth said, even if it was more technical.

‘Slow Your Roll’

The court did toss away some of the Fifth Circuit’s most significant decisions on issues like access to the abortion pill mifepristone and alleged censorship on social media platforms, holding for a third term in a row that the appellate judges improperly found that parties had standing, or the required injury, to pursue their claims.

Justice Amy Coney Barrett was particularly forceful in writing about the appellate judges’ ruling in that social media case. “The Fifth Circuit was wrong to do so,” she said of that court’s order that upheld a block on executive branch officials’ contacts with social media companies.

“There’s this siren song in these high-profile constitutional cases that seems to draw in occasional panels in the Fifth Circuit, and because they’re so important, the merits issues, it draws the attention of the Supreme Court,” said David Coale, a Dallas partner with Lynn Pinker Hurst & Schwegmann who tracks Fifth Circuit rulings.

“I don’t know how much louder the Supreme Court can holler at them about this, that you got to watch these standing principles or they’re going to reverse it,” he added.

Even as the circuit has let some cases go forward, it’s rejected others on the issue of standing. Three Republican appointees on the court last week found that Texas hadn’t shown it had a requisite injury to challenge federal regulations on possessing gun silencers.

Surprising rebukes of the Fifth Circuit by the Supreme Court also came in decisions that preserved the Consumer Financial Protection Bureau’s funding structure and upheld a federal ban on gun possession by people subject to domestic violence restraining orders.

Writing for the majority, Chief Justice John Roberts accused the appeals court of “slaying a straw man” in the gun case by focusing on hypothetical scenarios that could raise constitutional concerns.

In that opinion, the Supreme Court “instructs the Fifth Circuit in no uncertain terms: slow your roll,” Justin Driver, a constitutional law professor at Yale, said in an email.

Despite a 6-3 conservative majority on the high court, legal scholars say it’s telling that the Fifth Circuit keeps getting overturned.

“It really suggests that the court is reaching results that really have no basis in the law with alarming frequency,” said Adam Winkler, a UCLA constitutional law professor and Second Amendment scholar.

Though some rebukes are good, three other unprecedented opinions have become the law of the land “and that’s nothing to celebrate,” he said.

Avoiding The Merits

The latest affirmance of the Fifth Circuit came Thursday when the justices said people subject to civil penalties for alleged securities fraud have a constitutional right to a jury trial, limiting the SEC’s ability to adjudicate these cases in-house.

“It’s a landmark decision that goes beyond the SEC and stakes out jury trial rights for all Americans in administrative proceedings,” said Mark Chenoweth, president of the New Civil Liberties Alliance (NCLA), which urged the court in a brief to uphold the Fifth Circuit’s decision.

That legal group, which is backed by powerful sources of conservative funding, argued three cases this term, two of which came from the Fifth Circuit. It won its challenge to the bump stock ban and lost its fight against the Biden administration’s alleged social media censorship.

The latter and “at least one other case from the Fifth Circuit were not decided on the merits, they were just decided on standing and the court has been stingy with standing, but I don’t think that’s a reflection on the Fifth Circuit,” Chenoweth said.

“I think the court has decided to avoid the merits and I think that’s a mistake,” he said.

Tara Leigh Grove, a law professor with the University of Texas, said that the SEC and bump stocks cases “underscore that litigants are trying to push the law, not that courts of appeals are trying to push the law.”

She noted that the ban on bump stocks was issued by the Trump administration, and said the SEC challenge involves “a complicated set of issues that don’t necessarily have a clear political valence.”

Supreme ‘Disconnect’

The Fifth Circuit was reshaped by former President Donald Trump’s appointees, after he placed six judges on the New Orleans-based appeals court that covers Louisiana, Mississippi and Texas.

One of those appointees, Cory Wilson, was part of the majority in five of the cases that the justices reviewed. Fellow Trump appointee Andrew Oldham also heard five of those cases, but wrote a dissent in one of them—the majority ruling he disagreed with was ultimately overturned by the Supreme Court.

And Judge Jennifer Walker Elrod, a George W. Bush appointee, was part of the majority in four of the cases that the justices took up. She wrote the opinion for the en banc Fifth Circuit against the bump stock ban, a decision that the Supreme Court affirmed, as well as the reversed mifepristone ruling.

Steve Vladeck, a law professor with Georgetown University, said those instances show that the Fifth Circuit cases the Supreme Court feels compelled to take up aren’t necessarily being driven by the more moderate members of the circuit. “The disconnect is between a particular subset of Fifth Circuit judges and the Supreme Court,” he said.

It’s too early to see how the Fifth Circuit will react to the recent Supreme Court rulings, including how it might apply the justices’ directives on standing. It’s also unclear whether the court will remain a magnet for high profile lawsuits: If Trump were to win back the White House in November, liberal parties would likely seek to challenge his new administration’s policies in courts that might be more sympathetic to their arguments.

Since there wasn’t a visible reaction by the Fifth Circuit to how badly it did last term, “I’m not sure we should be holding our breath,” Vladeck said.