The U.S. Court of Appeals for the Fifth Circuit in New Orleans has turned its corner of the federal judiciary into a proving ground for some of the most aggressive conservative arguments in American law.
Credit...Edmund D. Fountain for The New York Times

How a Federal Court in New Orleans Is Driving the Conservative Agenda

Today, the U.S. Fifth Circuit Court of Appeals is an outlier. But a Trump victory in November could transform it into the standard-bearer of MAGA-era jurisprudence.

by · NY Times

The Supreme Court term that ended this summer delivered a number of big wins for traditional conservative causes. The court made it easier to challenge federal regulations. It made it harder to prosecute former presidents. And it delivered another decision that expanded the rights of gun enthusiasts.

Those rulings left no doubt that the court, with a six-justice supermajority that had already upended abortion rights and affirmative action, is the most ideologically conservative Supreme Court since the early 1930s.

Yet it is almost certainly not the most conservative federal court in the country.

About 1,000 miles away, in New Orleans, the U.S. Court of Appeals for the Fifth Circuit has turned its corner of the federal judiciary into a proving ground for some of the most aggressive conservative arguments in American law. Six of the 17 judges were nominated by former president Donald J. Trump, who has vowed to continue transforming the federal judiciary with further nominations if elected again in November.

In a few of the biggest Supreme Court decisions of the last few years — including Dobbs v. Jackson, which ended a 49-year right to abortion — it was the Fifth Circuit that first ruled on the case, teeing it up for Supreme Court review and a seismic moment in American law and politics. And in the Supreme Court’s upcoming term, which begins in early October, the justices have agreed to hear five more cases from the Fifth Circuit, including a challenge to regulating so-called ghost guns.

The court’s jurisprudence has been so audacious that, in more than a few cases, its rulings have received a skeptical, even hostile response from the Supreme Court, which overruled the Fifth Circuit seven times just in this past term, on an array of disputes ranging from gun rights for domestic abusers, government regulation of social media, and the F.D.A.’s approval of an abortion drug.

The Fifth Circuit, which hears cases from Louisiana, Mississippi, and most important Texas, embodies “the Trumpist wing of legal thought,” said Stephen Vladeck, a professor at Georgetown University Law Center and a prominent critic of both the Supreme Court’s rightward shift and of the Fifth Circuit in particular.

Senator Ted Cruz, the Harvard Law School-trained Republican who previously served as Texas’ solicitor general, has called the Fifth Circuit “a court that is near and dear to my heart” and “the finest appellate court in the country.”

In a statement, Mr. Cruz praised the Fifth Circuit bench, which, as a member of the Senate Judiciary Committee, he’s had a vote in shaping. “Their legal acumen matches or exceeds any other group of judges in the country,” he said.

Where Mr. Cruz sees acumen, others see a court unusually eager to float untested legal theories. Mr. Trump’s Fifth Circuit nominations tended toward the “activist end” of judging, said Jeremy Fogel, a retired federal judge who once led the training center for new federal judges.

“If you appoint enough people over a long enough period of time,” Judge Fogel said, “you get a shift in the culture of the judiciary.”

Mr. Trump has boasted that he “totally transformed the federal judiciary,” and indeed, his effect on the judiciary has been profound. He nominated 234 federal judges who were then confirmed by the Senate, more than any president in a four-year stretch since Jimmy Carter.

The three justices whom Mr. Trump nominated to the Supreme Court draw the most attention, but he also left his mark on the 13 federal appeals courts. Fifty-four of his appellate nominees — again, the most in a single presidential term since Mr. Carter — were confirmed by the Senate. Those courts are instrumental in overseeing the 94 district courts and shaping the questions that reach the Supreme Court. Mr. Trump has pledged to appoint more “rock-solid conservative judges” during a second term.

The contours of a federal judiciary shaped by a second Trump term are already visible on the Fifth Circuit. Among the judges who were nominated by Mr. Trump is James C. Ho, who has made a name for himself, in his pointed opinions and sometimes more pointed public statements, as the champion of a more aggressive style of conservative jurisprudence.

Judge Ho was already shortlisted as a possible Supreme Court nominee during Mr. Trump’s first term. In 2022, he called for a boycott of Yale Law School graduates from coveted clerkships because of what he claimed was the school’s endorsement of so-called cancel culture. One of his opinions claimed to side with “the written Constitution” over the “woke Constitution.”

In Dobbs, the case that ultimately led to the overturning of Roe v. Wade, Judge Ho chastised the district court for drawing a link between a Mississippi abortion ban and the state’s history of racism. One could just as easily argue that proponents of reproductive rights have “the taint of racism,” he argued, laying out his own arguments that abortion has been associated with eugenics. “Both sides of the debate deserve respect,” he wrote.

Among the Fifth Circuit decisions rejected by the Supreme Court was a ruling that would have limited the distribution of the abortion drug mifepristone. The justices found that the plaintiffs lacked standing, with Justice Brett Kavanaugh warning that allowing a group of anti-abortion physicians to challenge a 24-year-old decision by the F.D.A. would send the Supreme Court down “an uncharted path.”

In another reversal, in United States v. Rahimi, the Supreme Court struck down a Fifth Circuit decision that would have effectively put firearms back in the hands of domestic abusers.

But what appears to be overreaching by the Fifth Circuit today could look more like setting the pace for the conservative movement’s judicial agenda, should Mr. Trump win in November.

Akhil Reed Amar, a Yale Law School professor who has written several books on the Constitution, said that the Fifth Circuit’s extreme jurisprudence could be driven in part by the politics of the judiciary, as appellate court judges seek to display the ideological bona fides that might win them a promotion to the Supreme Court.

“If you’re MAGA and you think Donald Trump is going to win the election, you can be in the right lane or hard-right lane,” Professor Amar said. “The hard-right lane is the better lane to be in if you want to get yourself nominated.”

The friction between the Fifth Circuit and Supreme Court reflects, in part, a longstanding question about the role of appellate courts. Some, like Professor Amar, believe that they should always defer to Supreme Court jurisprudence.

Others, like Michael W. McConnell, a former appellate judge who leads the Stanford Constitutional Law Center, say that the job is more complicated, and that the Fifth Circuit isn’t the first appellate court to try to break new legal ground on issues where its bench has reason to believe that the Supreme Court’s position is wrong.

He noted that the Ninth Circuit, which is known for being quite liberal and covers California and eight other Western states, had a high reversal rate between 1994 and 2015, with the Supreme Court overturning rulings on labor, human rights, immigration, and whether “under God” belongs in the Pledge of Allegiance.

Both the Fifth and Ninth circuits, Judge McConnell said, have been shaped by Senate protocol, which gives the opinions of home-state senators extra weight on judicial nominees. Known as the “blue-slip process,” for the colored form that home-state senators use to weigh in, the procedure gives a great deal of sway to Senators from large one-party states like Texas (52 district-court judgeships) and California (61 district-court judgeships).

In the case of the Fifth Circuit, Texas’ blue-slip clout has led to a pipeline of statehouse officials who get appointed to the federal bench and then wind up hearing lawsuits filed by their former colleagues. Judge Ho, for example, once worked as the state’s solicitor general under Greg Abbott, who was attorney general at the time. Judge Ho succeeded Senator Cruz in that role; seven years later Senator Cruz would help shepherd Judge Ho through confirmation and attend his swearing in.

Today, Judge Ho is playing a crucial role in deciding the fate of now-Governor Abbott’s numerous legal conflicts with the federal government.

Judge Ho’s impact on Mr. Abbott’s cases includes a July decision permitting buoys to remain along a 1,000-foot stretch of the Rio Grande in order to stop undocumented immigrants from crossing into the U.S. from Mexico, while a lower court weighs a claim by the federal government that they are illegal. In his opinion, Judge Ho argued that because Governor Abbott was exercising Texas’ “sovereign prerogative” to “defend itself against invasion,” the matter was beyond the jurisdiction of the federal courts altogether.

The buoy dispute is one of several immigration cases that have come before the Fifth Circuit in recent years as Texas has challenged the Biden administration in an attempt to assert more state control over the southern border. Last week, Texas and 15 other Republican-led states filed suit to stop a Biden administration program that could give legal status to undocumented immigrants who are married to U.S. citizens. As the case was filed in a Texas district court, any appeal would be heard by the Fifth Circuit.

The Fifth Circuit’s role in defining how far Texas can go would only grow should Mr. Trump regain the presidency, said Michael Waldman, the president and chief executive of the Brennan Center for Justice and the author of “The Supermajority,” a new book on the Supreme Court. “The federal government would no longer be at odds with the state of Texas. They’d be pulling together in the same direction, along with these conservative Fifth Circuit judges, and that would make a big difference.”

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