Conservative Fifth Circuit Is Stumbling at US Supreme Court

Decisions coming out of a notably conservative federal appeals court keep getting knocked down by the US Supreme Court, most recently in a decision that reinstated President Joe Biden’s immigration enforcement policies.

The US Court of Appeals for the Fifth Circuit has had only two of its eight rulings upheld by the justices so far this term with one more decision still to come in a potential blockbuster over Biden’s student loan forgiveness plan.

It’s an unexpected track record for rulings coming from one conservative court up for review by another, and a sign that the justices may be pushing back on an appeals court that refuses to rein in aggressive litigation by the state of Texas and others.

“I don’t think it’s a story about the Fifth Circuit in a vacuum,” said University of Texas at Austin School of Law professor Stephen Vladeck. “It’s about the Fifth Circuit not pushing back when Texas and other litigants are pushing the envelope.”

The Fifth Circuit, which covers Texas, Louisiana, and Mississippi has become a magnet for challenges to Biden administration policies, ranging from abortion access to LGBTQ rights and immigration. The cases are often filed by the state of Texas or Republican state attorneys general as a group.

Critics say Republican attorneys general see a path to success by choosing district courts within the Fifth Circuit where they’re almost guaranteed to get a sympathetic judge as the first step toward similarly assured outcomes in the Fifth Circuit and Supreme Court. The results this term at the high court, however, suggest victory isn’t a sure thing.

That may be, in part, because some members of the Supreme Court’s 6-3 conservative wing, including Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, are being a bit more moderate than the Fifth Circuit. President Donald Trump further tilted the court to the right with six appointments to the New Orleans-based court.

“President Trump’s nominees to the Fifth Circuit are more conservative than the appointments to the Supreme Court,” said Josh Blackman, a constitutional law professor at the South Texas College of Law Houston.

Immigration Enforcement

In US v. Texas, the justices on Friday rejected an attempt by Texas and Louisiana to sue to stop the Biden administration from setting deportation priorities the states disagreed with. In the 8-1 ruling, the justices rejected what Kavanaugh writing for the majority characterized as the states’ “highly unusual lawsuit” to have the judiciary decide immigration policy.

The federal judiciary may not “in effect order the Executive Branch to take enforcement actions against violators of federal law—here, by making more arrests,” Kavanaugh said.

Blackman said the court seems to be undercutting the increasingly common sort of litigation against the executive branch of the last decade or so.

“The court is sort of saying stop it,” he said.

In Haaland v. Brackeen, the justices similarly found that Texas didn’t have the authority—or standing—to press broad equal protection claims against a 1970s-era Native American adoption law. The court’s 7-2 ruling by Barrett rejected the state’s “creative” arguments that the law forces “it to break its promise to its citizens that it will be colorblind in child-custody proceedings.”

It’s not uncommon for an appeals court to have a bad term, but Vladeck said the kind of cases that are getting reversed are notable.

Other circuits to post similar records as the Fifth’s are the Second and Ninth—the latter of which is considered liberal, and generally finds itself on the losing end of high court cases. Like the Fifth Circuit, the Ninth Circuit’s losses have come in some major cases including those involving protections for internet companies and the EPA’s ability to regulate wetlands.

‘Ideologically Charged’

What’s most notable isn’t that the Fifth Circuit record is two wins and six losses, Vladeck said. “What’s revealing is I think five of the six are ideologically charged cases and so it’s not that the Fifth Circuit is getting reversed that often, it’s that it’s getting reversed in the kinds of cases where you wouldn’t expect it,” he said.

Vladeck noted that Texas as a party hasn’t been faring well at the Supreme Court either.

Texas Attorney General Ken Paxton, who was suspended last month following his impeachment, has been aggressively challenging the Biden administration and though he’s winning at the Fifth Circuit, he’s losing at the Supreme Court in cases that haven’t been closely divided.

“A lot of their positions are being disavowed by the Supreme Court, especially on the standing stuff,” said Raffi Melkonian, a partner at Wright Close & Barger LLP who regularly argues cases before the Fifth Circuit.

“The question I have in my head is what’s going to happen? Is Texas going to take the lesson that the Supreme Court is teaching and be more careful?” he asked.

The one case the Supreme Court has yet to decide from the appeals court is the potential blockbuster regarding the Biden administration’s attempts to cancel student loan debt. Like the high-profile losses in US v. Texas and Haaland v. Brackeen, the student loan case centers on the technical question of who can sue to challenge federal law and policy.

The Fifth Circuit did win when the justices unanimously agreed that trial courts have the authority to hear what the court called “fundamental, even existential” challenges to federal agencies. The court’s ruling in Securities and Exchange Commission v. Cochran was written by one of the court’s more liberal justices, Elena Kagan.

The Fifth Circuit’s only other win so far this term also came in a labor case, Helix Energy Solutions Group, Inc. v. Hewitt. That 6-3 decision was also authored by Kagan, with Justices Kavanaugh, Samuel Alito, and Neil Gorsuch—all Republican-appointed justices—in dissent.