Supreme Court Has Pile of Cases From Conservative 5th Circuit

The US Supreme Court opens a new term on Monday thinking about where its conservative revolution should go next. One federal appeals court already has lots of ideas.

In the next nine months, an outsize share of the high court’s biggest cases will come from the ultraconservative 5th US Circuit Court of Appeals, whose far-reaching rulings are proving impossible for the Supreme Court to ignore. Cases involving federal regulatory power, guns and probably abortion and social media regulation will test just how far the Supreme Court’s conservative majority wants to go in remaking the nation’s legal landscape.

The justices have already announced they will take up a 5th Circuit decision that declared the Consumer Financial Protection Bureau’s funding system unconstitutional, another that rejected the Securities and Exchange Commission’s use of in-house judges and a third that said people subject to a domestic violence restraining order retain a constitutional right to carry a gun. In the coming weeks, the high court may also agree to review 5th Circuit rulings letting Texas regulate content moderation decisions by social media companies, limiting access to a commonly used abortion pill and tossing out the federal ban on bump stocks, the devices that convert semiautomatic rifles into machine guns.

For a single appeals court, it’s a dizzying list, one that’s provoked criticism of judicial overreach. “The 5th Circuit is ready to adopt the politically most conservative position on almost any issue, no matter how implausible and no matter how much defiling of precedent it takes,” says Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law Center.

The rulings come from a court stacked with 12 full-time judges appointed by Republicans, including six named by former President Donald Trump, and only four Democratic selections. The New Orleans-based court has jurisdiction over Louisiana, Mississippi and Texas, states whose Republican senators have shepherded through nominees with robust conservative credentials, including deep ties to the Federalist Society. The group includes James Ho, a Trump appointee who’s described abortion as a “moral tragedy” and written that “if there is too much money in politics, it’s because there’s too much government.” Another Trump appointee, Cory Wilson, wrote before he became a judge that “gay marriage is a pander to liberal interest groups.” A third, Stuart Kyle Duncan, has become a lightning rod because of his opposition to LGBTQ rights; angry protesters once prevented him from giving a speech at Stanford Law School.

Judge James Ho in 2022.

Photographer: Michelle McLoughlin/Reuters

The 5th Circuit’s composition has made it the go-to forum for conservatives looking to press ideologically divisive litigation, sometimes with novel legal theories. Many of those cases start in Texas, where Republican state officials have made a practice of filing suits challenging Democratic administration policies before sympathetic federal district judges. The 5th Circuit struck down a key provision of the Affordable Care Act in 2019, backed an unusual Texas law allowing private enforcement of a six-week abortion ban in 2021 and has repeatedly blocked Democratic immigration policies.

Not all those cases ended well for conservatives. The Obamacare challenge was an especially big loser, earning a 7-2 rejection at the Supreme Court. In its most recent term, the Supreme Court at least partially rejected the 5th Circuit’s position in seven of nine cases, including fights over President Joe Biden’s deportation policies and a Native American adoption law.

The 5th Circuit may encounter more skepticism in the new term. The gun rights case tests the limits of the Supreme Court’s 2022 Bruen v. New York decision, which said the Second Amendment requires restrictions to have an “historical analogue” that show they fit within the nation’s tradition of firearms regulation. Writing for a 5th Circuit panel that included Ho, Wilson said the government hadn’t shown a historical pedigree for a law banning gun possession by people who are bound by domestic violence restraining orders.

The ruling tossed out a criminal charge against Zackey Rahimi, who prosecutors say participated in five shootings and threatened another woman with a gun, all after a judge had imposed a restraining order to protect a former girlfriend Rahimi had attacked and threatened to shoot. Even some conservatives question whether the Supreme Court will go so far as to back Rahimi’s right to own a gun, saying his violent history could give the Biden administration an edge. “If the government could have picked a case to be the first post-Bruen case, I think they would have picked this case and this statute,” says Hashim Mooppan, a Washington appellate lawyer who worked in the Justice Department under Trump. He predicts a government victory, though likely on narrow grounds.

Others hold that the 5th Circuit is simply doing what the Supreme Court instructed lower court judges to do when it ruled that gun regulations need to be rooted in history. “The 5th Circuit is showing the Supreme Court what it may very well have wrought in Bruen,” says Tara Leigh Grove, a professor who teaches constitutional law at the University of Texas. “It’s an extremely concerning implication of Bruen. But I don’t think it’s an unfair application of what the Supreme Court gave the lower courts in Bruen.”

Federal regulation is an area where the circuit has gotten especially creative. It blazed a new trail in the case of the CFPB, the agency set up after the 2008 financial crisis to regulate consumer finance products such as mortgages and credit cards. In another opinion by Wilson, the appeals court said the agency, which gets its money through the Federal Reserve, was set up in violation of the constitutional clause that requires a congressional appropriation for government spending. The ruling marked the first time a federal appeals court had invoked the appropriations clause as a restriction on how Congress can fund an agency, rather than simply a limitation on the executive branch. The stakes are high: Although the 5th Circuit invalidated only a never-enforced payday-lending rule, the Biden administration says the decision has cast a shadow over every action taken by the agency since its creation after the 2008 global financial crisis. Already, some companies and people sued by the CFPB have raised this case as grounds for dismissal.

With the SEC, the 5th Circuit found three separate constitutional problems, giving the Supreme Court a menu of options for curbing a system of in-house judges the commission uses for hundreds of cases a year—more than half of its enforcement efforts. Siding with hedge fund manager George Jarkesy, Judge Jennifer Walker Elrod wrote for the 5th Circuit that the use of administrative law judges violated the constitutional right to a jury trial. Elrod, an appointee of Republican President George W. Bush, also said Congress violated the sparingly invoked “nondelegation doctrine” by giving the SEC broad discretion to decide which cases it would press before in-house judges. And she said the judges’ job protections leave them too insulated from presidential control. The Biden administration is asking the Supreme Court to overturn all three of those holdings, saying the ruling could have “massive practical consequences” if left intact.

It’s a sign of just how far the 5th Circuit is going that the Biden administration is repeatedly turning to the Supreme Court for help, its 6-3 conservative majority notwithstanding. The question for the high court will be how much it wants to rein in an appeals court that has put itself at the forefront of the conservative legal movement.

“Some of the 5th Circuit’s decisions that will be reviewed this term may well be affirmed,” Georgetown Law Center’s Gornstein says. “Not every one of them was delivered from Crazytown. But it would be shocking if at least some of those decisions are not reversed.”

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To contact the author of this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story:
Reyhan Harmanci at rharmanci@bloomberg.net

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