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The New Orleans-based court, which hears Texas cases, is pushing the federal judiciary to the right, even when it gets overturned by a higher court.If the 5th U.S. Circuit Court of Appeals was a boxer, you’d bet on the other guy.
Just because these rulings ultimately got knocked down at the Supreme Court doesn’t mean the 5th Circuit is toothless, Vladeck said. This ruling would have resulted in mifepristone being removed from the market, throwing abortion and miscarriage care into chaos nationwide. But the U.S. Supreme Court intervened, ruling thatThe case then went to the 5th Circuit. The three-judge panel, two Trump appointees and one President George W. Bush appointee, agreed that the plaintiffs did have standing to sue. The appeals court ruling would have allowed mifepristone to remain on the market with significant restrictions.
Justice Amy Coney Barrett, another Trump appointee, similarly chided the 5th Circuit for its interpretation of standing on a Louisiana case,. In that case, the attorneys general of Louisiana and Missouri and five individuals accused the Biden administration of pressuring social media companies to censor information during COVID. They filed the lawsuit in Monroe, Louisiana, a city of 47,000 people, where Trump-appointed Judge Terry Doughty hears most cases.
It’s not just standing. In a case concerning whether domestic abusers can be barred from possessing guns, Chief Justice John RobertsThomas overturned a 5th Circuit ruling that found the funding structure of the federal Consumer Financial Protection Bureau was unconstitutional. And on the last day of the term, the Supreme Court ruled that the 5th Circuit had failed to adequately assess whether a new Texas social media law was constitutional.
One side effect of this cat-and-mouse game, Vladeck said, is the Supreme Court gaining a reputation as a “profoundly centrist institution” because it blocks the 5th Circuit’s most extreme rulings. “It’s not surprising that conservative litigants are getting more aggressive because you have a conservative Supreme Court,” said Blackman “But three years in, there have been a lot of cases that just did not yield success. Do they reevaluate and reassess? Or do they keep bringing these cases even when the Supreme Court keeps saying, ‘Go away. Go away. Go, we don't want these cases.’”
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