Supreme Court Eyeing Fifth Circuit, But Too Early to Decipher Why

Court watchers have been musing that the US Supreme Court’s conservative supermajority will lead the justices to closely align with the most right-leaning lower courts.

In other words, the Supreme Court would be expected to reverse a lower court’s decisions less frequently on balance if that appeals court skews conservative. But what happens if a lower court is more conservative than the Supreme Court?

This analysis examines whether the Supreme Court is siding more frequently with the positions of the more conservative lower courts. Then, specifically, it looks at the court’s relationship with the circuit most scrutinized for its conservative stances: the Fifth Circuit.

Measuring Conservativism

Over the past couple years, a new narrative about the US Court of Appeals for the Fifth Circuit has developed. The Fifth Circuit has been called the most conservative federal court of appeals in the US.

Based on the author’s analysis for this article, 37.5% of the circuit’s 16 active judges were appointed by former President Donald Trump and 75% were appointed by Republican presidents—second only to the Eighth Circuit, which has 91% of its judges appointed by Republican presidents. Analysts are suggesting that the Fifth Circuit may even be more conservative than the Supreme Court. But how can we tell?

While there’s no widely accepted measure for the relative amount of conservatism of each circuit, studies often look at the balance of Democratic and Republican appointed judges as such a measure. The Judicial Common Space, a measure developed by Lee Epstein and collaborators, creates a more nuanced score by taking the voting behavior of a judge’s appointing president and home state senators (measured by roll call votes).

While these are helpful as proxy measures, they are static during a judge’s tenure, and they aren’t tethered to the judge’s votes. The scores are bounded between -1 and +1 with positive numbers correlating with more conservative judges and circuits, and negative numbers correlating with more liberal ones. The score for a given circuit is based on the median, or middle, member of the court based on JCS score.

The graph below shows the circuits’ median scores from 2015 through 2022. The starting date is 2015 to show circuits’ positions prior to and through the Trump presidency.

The graph shows that the most conservative circuits are the 11th, Fifth, Seventh, and Sixth, while the most liberal circuits are the D.C., Federal, First, and 10th Circuits.

While the JCS Score for the Supreme Court in 2022 has not been released it is fair to say that most recently the Fifth Circuit was the second most conservative circuit in the country and had a JCS Score quite far to the right of the Supreme Court.

Reversals

To test the relationship between the Supreme Court and the courts of appeals, it’s helpful to first look at the reversal rates for the circuits over time. In this case, a short timeline will work best for understanding the current high court’s treatment of cases from the circuits—a shorter timeline will reflect less turnover on the courts.

For background, consider that the Supreme Court tends to reverse more lower court decisions on balance than it affirms. The theory is that the Supreme Court makes a greater impact by reversing lower court decisions—affirming lower court decisions often leaves the status quo in place. Forward-thinking justices tend to grant certiorari with an expectation of voting to reverse the lower court’s decision on the merits. Since the beginning of the 2020 Supreme Court term, the high court reversed approximately 68% of lower court decisions after granting review.

With this average rate in mind, below is a graph of the Supreme Court’s reversal rates on the left and case counts on the right for all the circuits. The graph spans from the 2020 term—when all the current justices aside from Justice Ketanji Brown Jackson were seated on the Supreme Court—through the completion of the 2022 term, which ended June 2023. It is also worth noting that the ideological balance of the court likely didn’t significantly shift when Jackson replaced Justice Stephen Breyer.

The Fifth Circuit was reversed the seventh most frequently of the circuits for this period at 74%. This is more reversals than anticipated if one expects the Supreme Court to overturn the fewest decisions from the most conservative circuits.

On that note, the 11th Circuit, the most conservative circuit according to the JCS, was reversed least often (36%), and the D.C. Circuit, which is tied for the most liberal circuit, was overturned most frequently.

Increased Fifth Circuit Grants

This term, the Supreme Court has taken more cases from the Fifth Circuit so far—nine—than from any of the other circuits. The Fifth Circuit’s dominance on the docket will be a significant aberration if it holds for the rest of the term.

If we push back to the 2010 term and look at the relative rate of cases coming from the Fifth Circuit, there’s a steady increase, especially from the 2016 term to the present. To see this increase, the following graph looks at the share of cases the Supreme Court granted for oral argument from the Fifth Circuit, as well as from the Ninth Circuit—the circuit where the court typically takes the most cases—and the 11th Circuit, which ranks as the most conservative circuit according to the JCS.

While the share of cases from the Ninth and 11th Circuits has been relatively stable over the last number of terms, the fraction of cases from the Fifth Circuit rose.

There is speculation that the court is granting more cases from the Fifth Circuit because the circuit’s judges are more conservative than the Supreme Court.The Fifth Circuit’s aggressively conservative rulings are leading the high court to accept their cases in order to reverse them, the theory goes.

Since there have been no major shifts in the ideological makeup of either court over the past year, we can at least assume the Fifth Circuit’s decisions will be reversed as often as they were in recent terms—which is more frequently than the average across all circuits.

The Supreme Court’s increased grants from the Fifth Circuit at least intimate that the Supreme Court is actively monitoring the circuit’s decisions, and more often than it has in the past.

For now, it’s still conjecture that the Fifth Circuit is more conservative than the Supreme Court, but at the very least we know that the Fifth Circuit’s decisions in salient cases have the Supreme Court’s attention.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Adam Feldman runs the blog Empirical SCOTUS and teaches political science at California State University Northridge.

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