Trump-Stocked Fifth Circuit Eyes Record Number of En Banc Cases

The US Court of Appeals for the Fifth Circuit is increasingly reviewing its own decisions, teeing up the influential court to hear more en banc cases this year than it has in over 15 years.

The New Orleans-based federal appeals court reheard five cases en banc in January, and has agreed to hear five more during a sitting in May. The court traditionally hears other pending en banc cases in October, and if the court agrees to take up at least one more this year, it’ll be the most since it heard 11 cases in 2003.

An infusion of newer members and an increase in nationally watched cases being filed within the court’s jurisdiction may be behind the higher number of en banc cases in recent years, law professors and Fifth Circuit practitioners said.

While the en banc court’s recent rulings haven’t resulted in seismic changes to case law, experts say the increased numbers of rehearings could affect the court’s collegiality, as colleagues directly take on each others’ decisions. It also could take up more of the court’s resources as it juggles a wave of high-profile litigation as some parties aim to be reviewed by the conservative-led Fifth Circuit.

“There are certainly high-profile constitutional, administrative law cases that have gone en banc, and generated a lot of energy in the court, a lot of impassioned concurrences and dissents and all that,” said David Coale, a partner at Lynn Pinker Hurst & Schwegmann who regularly writes about the Fifth Circuit. “But that’s not entirely what’s driving all of this increase in en banc.”

The Fifth Circuit’s January sitting included cases like whether the Mississippi constitution’s lifetime voting ban for some convicted felons violates the US Constitution’s protections against cruel and unusual punishment, and a review of a National Labor Relations Board directive that Elon Musk should delete a social media post about unionized workers losing stock options.

But it also took up lower profile matters whether a child bullied for wearing a MAGA hat to school could bring race-based harassment claims against a school district, a dispute over state lawmakers’ privilege logs over the attempted dissolution of Jackson, Mississippi’s airport commission, and a criminal appeal on the definition of marijuana possession.

“My best explanation is it’s just a continuation of the relatively young and energetic factor,” Coale said.

Chief Judge Priscilla Richman didn’t respond to a request for comment.

Out of the 17 active judges on the circuit, eight have been appointed since 2017, comprising six Trump appointees and two Biden nominees. That gives the court not only a conservative majority, but a relatively younger one, too, in a job without mandatory retirement ages. Senior judges whose panel rulings are being reviewed can also sit on the en banc court, in addition to the full slate of active judges.

Kyle Hawkins, a former Texas state solicitor general who’s successfully argued before the en banc court five times, noted that those cases only make up a small percentage of the thousands of appeals the court faces each year.

Hawkins, now a partner at the boutique law firm Lehotsky Keller Cohn, said in an email that since one of the considerations on whether to take a case en banc is if it “involves a question of exceptional importance,” it makes sense that as Texas becomes more of a draw for business and policy matters—and the state’s population grows—"the Fifth Circuit will see more cases worthy of en banc review.”

Xiao Wang, a law professor and head of the University of Virginia’s En Banc Institute, said there might be a natural pile up of the cases. But he said that as the lower courts within the circuit have shifted more to the right, and the younger appellate judges have shown an appetite for more rehearings, it’s contributed to the larger number of cases.

“It certainly seems like some of the newer appointees really do want to sort of make the cases almost more high profile, give them a bigger pedestal and a spotlight,” he said.

The active roster of judges often writes separately in the en banc cases. A January ruling finding that Texas officials had qualified immunity in a lawsuit from a woman briefly arrested for publishing non-public information “with intent to obtain a benefit” drew four dissenting opinions across a group of seven judges. The en banc court’s 2023 ruling on the Biden administration’s vaccine mandate for federal employees drew five separate opinions, and the court was also fractured in its ruling the same year against a federal ban on bump stocks.

Andy Lee, a partner at Jones Walker’s New Orleans office, said the new appointees are also bringing new judicial philosophies to the bench. “They’re dealing with some fairly politically charged and divisive issues on the docket,” he said. “So that’s kind of a combination that I think has led to more panel overrides with a single dissent, or no dissent cases getting the court’s attention and leading to en banc votes.”

En Banc Effects

Allison Orr Larsen, a professor at William & Mary Law School who has studied en banc rulings, said that as federal judges spend more time on the bench, they are less likely to seek out a full court review of a panel decision.

“The more seasoned veteran you are, as a judge, the less inclined you are to want to go en banc in every case, because you’ve had some unpleasant experiences, so you have some battle wounds. And the newer you are to the bench, you might see your role differently. As opposed to thinking of it more as a collective enterprise, you might think of it as ‘well, I took an oath, and I have to do what’s right. And I’m not going to turn and look the other way just because I don’t want to ruffle feathers,’” Larsen said.

Larsen said that en banc rehearings can also affect a court’s collegiality, as it’s the full court reviewing their colleagues’ work, rather than a lower court decision or parsing the meaning of a Supreme Court ruling. “Some judges are going to say that’s not a reason to refrain from doing it. But I think other judges, particularly ones who’ve been around the block for a while, are going to hesitate before going en banc frequently because of the collegiality hit that ensues,” she said.

Lee, the Jones Walker partner, echoed Larsen, saying appellate practitioners before the circuit have heard that the increased cases has “resulted on a strain on workload” among the judges and their staff.

“In some ways, the effects of it are more than just, this is going to make it a little bit uncomfortable in the lunch room,” Larsen said. “It’s also, we’re going to decide fewer cases, because we don’t have time to do it. And the cases we do decide are going to be decided slower.”