Fifth Circuit Liberals Chide Judges’ Critiques of Trial Court

Some liberal members of the Fifth Circuit are pushing back against the court’s right-leaning wing’s criticism of district court judges.

In an order Friday, the full US Court of Appeals for the Fifth Circuit voted against rehearing a case over Louisiana inmates being assigned to farm work in difficult summer weather conditions. A three-judge panel in November found that the temporary court orders at issue had expired and dismissed the appeal.

In a dissenting opinion, Judge Edith Jones said she wanted to “forcefully rebuke the district court’s gamesmanship that avoided the requirements of federal law.” She was joined by Judges Jerry Smith, James Ho, Stuart Kyle Duncan, and Andrew Oldham.

Ho also wrote a separate dissent in which he backed Jones’ “call to arms on the need for appellate courts to police insubordination in the district courts.”

Judges Stephen Higginson, Carl Stewart, James Graves, and Dana Douglas spoke up in defense of trial judges in an opinion concurring with the decision to not rehear the case.

“It is a disservice to our branch for any inferior officer to speak of ‘rebuk[ing]’ or ‘policing’ another,” Higginson wrote, joined by the other judges. He pointed to late Fifth Circuit Judge Thomas Reavley saying "[t]he trial judge is the key to the administration of justice. . . . [I]t is a function of the circuit judge to be an enabler of the trial judge, because the trial court is the point of delivery of justice.”

The rare pushback over the language comes as some conservative members of the circuit have been increasingly critical of federal trial judges. Ho, a Donald Trump appointee considered a potential Supreme Court pick, has been particularly vocal on the topic.

Jones, a Ronald Reagan appointee, quoted Alexander Hamilton in her dissent as saying that federal courts have “neither Force nor Will, but merely judgment.”

“It is up to the Article III courts to police judicial refusals to follow the law. This case, though by far not the only example of recent judicial disobedience, is emblematic,” Jones wrote.

She claimed that US District Judge Brian Jackson—a Barack Obama appointee in the Middle District of Louisiana —twice violated the Prison Litigation Reform Act, which says preliminary injunctions in prison reform cases expire after 90 days unless they’re made permanent.

Jones said the judge issued one injunction, and then a nearly identical order one day after the first expired without making the required factfinding. “This court should have found by at least the second injunctive order in question that the district court’s noncompliance with the PLRA raised issues capable of repetition yet evading review,” she said. “This court should have taken a stand against judicial failure to abide by the law.”

In his separate dissent, Ho addressed Higginson’s concurrence in a footnote, saying that members of the court were critical of federal judges in a dissent issued in the full court’s ruling that let Louisiana’s law requiring the Ten Commandments be displayed in public school classrooms. Then-Judge James Dennis, who’s since moved to inactive status on the court, wrote that the court’s majority was “evad[ing]” precedent in a “calculated” “maneuver” to violate the “vertical fidelity that defines the role of an inferior court”

That dissent “demonstrates that they see nothing wrong with judges judging the work of other judges. Nor do I,” Ho said. “Indeed, that’s our job. The only question is whether a particular allegation of insubordination is true or false.”

Judge Cory Wilson, a fellow Trump appointee, wrote in a separate statement that he shares some of Jones’ concerns about the trial court orders becoming moot before the circuit could consider them.

But he said the district court held a bench trial earlier this month. “Whichever way the district court’s ruling goes, the perennial crop of preliminary injunctions will not be sown again during this year’s growing season,” Wilson said. “Therefore, while I share many of the concerns sketched by Judge Jones about the ‘evergreen’ preliminary relief at issue, the more judicious course is a patient one.”

The case is Voice of the Experienced v. LeBlanc, 5th Cir. en banc, No. 25-30478, 2/27/26