Full Fifth Circuit Overrides Moderate Senior Judges’ Rulings

A handful of Fifth Circuit judges are mellowing out some rulings from one of the most conservative federal appeals courts.

Three-judge panels for the court this year have blocked a Louisiana law requiring public schools display the Ten Commandments; let a challenge proceed to a Texas law requiring signs be displayed when firearms are prohibited; and found that Texas A&M’s president violated student’s First Amendment rights in canceling a charity drag show.

In each of those cases, a senior judge has been part of the panel’s majority. And those decisions are now all being reconsidered as part of eight cases heard by the court’s full slate of active judges in New Orleans this January, after they voted to take them up.

Even as the federal appeals court gets attention for rulings by Donald Trump’s six appointees, the older, more moderate judges are still able to wield some power, legal experts said. Still, those older judges can only go so far, as the active judges can override them at the en banc stage—if they have the votes. Trump appointees dissented at the panel stage for four of the seven en banc cases, and a Reagan appointee dissented in a fifth case.

There are seven senior judges currently hearing cases alongside the circuit’s 17 active judges. The older judges still have an influence, if only because of how many panels they continue to sit on, said Tulane University law professor Sally Brown Richardson.

“Most of the senior judges on the Fifth were appointed by Presidents of decades gone by and tend to have more moderate judicial philosophies than judges appointed by President Trump or even President Obama, particularly on the more hot-button issues that tend to gain more media attention and social media scrutiny,” she said in an email.

David Coale, a partner at Lynn Pinker Hurst & Schwegmann who regularly writes about the Fifth Circuit, said the older judges may also be influenced by their years of experience. He said that, because they’ve seen thousands more cases than their younger counterparts, they might be more willing to work with the court’s existing precedent than try to change it.

When the senior judges step off the court—assuming no other changes to the court’s membership—Coale said more cases are likely to be heard by a court with a “more conservative, younger makeup.” President Donald Trump appointed six of the circuit’s judges during his first term.

Seven Seniors

A Bloomberg Law review of oral argument panels available on the circuit’s website, dating back to August 2020, shows that the court’s longest serving member, Jimmy Carter appointee Carolyn Dineen King, has heard 150 cases in that timeframe, including 29 cases so far this year.

This tally doesn’t include cases that weren’t initially designated for oral argument , or en banc arguments, which senior judges can participate in if they were part of the underlying three-judge panel in the case.

Not all of the senior judges are considered moderate: Senior Judge Edith Brown Clement, a George W. Bush appointee, is considered one of the more conservative members of the court. She’s the most active senior judge since August 2020, having heard 186 cases since then including 33 so far this year.

Bill Clinton appointee James Dennis has heard 101 oral arguments since taking senior status in 2022. Dennis is one of the court’s more liberal members and was in the majority for three of the seven panels whose cases will be reheard during the Fifth Circuit’s upcoming en banc sitting.

Tad Bartlett, a partner with Fishman Haygood who tracks Fifth Circuit opinions, said Dennis is one of the main dissenters on the court. Bartlett said the judge seems to “relish that role” in how it develops the law—dissents can serve as a flag for the Supreme Court to take up a case.

Senior Judge Patrick Higginbotham, a Ronald Reagan appointee, is seen as a moderate member of the circuit. He’s heard 128 cases since August 2020 and was in the majority for a panel decision that’ll be reheard en banc in January.

Coale said that Higginbotham’s 2024 dissent against Texas’s law that requires porn sites to verify users’ ages accurately applied older rulings, and “was kind of the tip for the Supreme Court to take the case” and change that precedent.

The judges themselves appear to acknowledge the importance of panel assignments when hearing cases: Clement in 2019 said that Mississippi “simply had the poor luck of drawing a majority-minority panel” in seeking a stay in a Voting Rights Act case, as two Democratic-appointed judges denied their request.

Some senior judges, like W. Eugene Davis, Jacques Wiener, and Barksdale seem to be hearing fewer cases in recent years, Bartlett said. Wiener, appointed by George H.W. Bush, has heard 30 cases this year, Barksdale has heard six arguments, and Davis—a Reagan appointee—has heard nine so far.

Full Court Action

The spike in en banc cases for next year is in line with a generally heavier en banc calendar at the Fifth Circuit in recent years. The full court only heard five cases this year but took up 13 in 2024.

Bartlett said that the heavier en banc calendar seems to be full of cases that deal with “hot button social issues,” from immigration to the First Amendment.

“The court being is driven by these younger, more recently appointed judges to consider these cases en banc,” Bartlett said.

Votes on whether to rehear a case en banc are typically only made public if the full court denies rehearing. But the split among Republican-appointed active judges spilled into the public in September, as Judge Leslie Southwick —nominated by George W. Bush—dissented from the grant of en banc rehearing over Trump’s use of the Alien Enemies Act to try and deport alleged Venezuelan gang members.

“I see no purpose to be served by requiring this case to linger here for the many months that en banc rehearing would entail. The parties deserve conclusive answers that only the Supreme Court can give,” he wrote.

Judge James Ho, a Trump appointee, pushed back. He said that if the government wanted to take the case to the Supreme Court, it could have. “The issue is obviously compelling,” Ho said.