Southern conservative appeals court appears to exasperate Supreme Court

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If there is a fight to the deadline at the Supreme Court to intervene in a hot-button case with far-reaching implications, there is a good chance that the U.S. Court of Appeals for the Fifth Circuit will be the source of the legal dispute. .

The very conservative appeals court, which oversees federal appeals arising in Texas, Louisiana and Mississippi, has been responsible for some of the most radical and far-right rulings that have been appealed to the Supreme Court. Many of those clashes have played out in the so-called shadow docket, the colloquial term for emergency requests that the high court must decide on a quick timeline, without the full process of briefs and oral arguments.

Both the appeals court and the high court lean heavily to the right, and former President Donald Trump’s appointees are taking both courts in an even more conservative direction. However, in some disputes, the Supreme Court repeatedly rejected the Fifth Circuit with a frequency that far exceeds that of other federal appeals courts.

The court has stayed the rulings of the Fifth Circuit that they have blocked federal weapons restrictions, interfered with federal immigration activity and limited contact with the Biden administration with social media companies.

In the most recent shadow dispute to arise from the Fifth Circuit, stemming from a Biden administration challenge to a controversial Texas immigration law, the Supreme Court left instead of an order of the appeals court that would allow the law to take effect. But two of the Supreme Court’s conservatives signed an agreement urging the Fifth Circuit to move quickly with a more comprehensive review of the law, and within hours, the appeals court on pause law enforcement.

The Fifth Circuit rulings that the Supreme Court recently reviewed on the merits have received a similarly cool reception from the justices. In an abortion pill case heard last week, several members of the conservative bloc They were skeptical The anti-abortion doctors who brought the challenge to the U.S. Food and Drug Administration’s drug regulations had crossed a basic procedural threshold to bring the case.

The magistrates had previously issued an emergency order that allows the current regulatory status quo around the drug to continue. It was one of at least five emergency orders the Supreme Court issued in the last year that fully or partially reversed the course taken by the Fifth Circuit.

“The Supreme Court is effectively saying, ‘Not only is there a significant possibility that we will reverse your decision, but you miscalculated the actions, you did not adequately weigh the costs of leaving the district court’s decision in place while we consider that,'” he said. Steve Vladeck, CNN Supreme Court Analyst.

“And so it suggests that, in reality, the Fifth Circuit is off the mark on two different counts: one about where the Supreme Court stands on the underlying substantive issues, and one about where the Supreme Court stands on what the status quo. while those substantive issues are litigated,” added Vladeck, a professor at the University of Texas School of Law.

The trend has been driven in part by how Texas has become a breeding ground for some of the most high-profile and high-stakes legal cases, often brought against the Biden administration by Texas Attorney General Ken Paxton and others. state attorneys general who are aligned. with the.

“It’s also a place where I see a lot of culture war issues: abortion, guns, redistricting, immigration and the border. A lot of them ended up in Texas and then the Fifth and then the Supreme Court,” said Carl Tobias, a professor at the University of Richmond School of Law.

In November, the judges heard arguments on a Fifth Circuit ruling which was considered unconstitutional the federal ban on gun ownership by people who are under domestic violence restraining orders. The court will also decide this year an important case arising from the Fifth Circuit that examine the scope of the federal government’s administrative authority, as well as blockbuster disputes surrounding social media, gun laws and immigration.

Adam Feldman, a Supreme Court scholar who tracks court-related data on his Empirical SCOTUS blog, pointed to Trump’s rise of controversial judges on the Fifth Circuit as a reason why many of his cases have been reviewed by the superior court. .

Trump appointed six of the active judges on the Fifth Circuit, plus about two dozen Trump appointees who sit on the district courts the circuit covers.

Some of those judges have developed a tendency to write separate opinions in important cases asking the high court to take aggressive opinions on the law.

“So I think that contributes to the Fifth Circuit being more of a focal point in terms of Supreme Court review than it has been in the past,” Feldman said.

There are additional incentives for Republican attorneys general and other conservative litigants to bring their lawsuits in the Fifth Circuit. Federal district courts in Texas are divided in such a way that, in certain divisions, only one or two judges are assigned the vast majority of cases.

Right-wing litigants have been accused of exploiting that system to elect their judges. The abortion pill case was heard in one of those single-judge courts, and the judge, appointed by Trump, issued a now-suspended ruling that would have removed the abortion drug from the market.

Vladeck pointed to two related things happening together: Right-wing groups and plaintiffs direct cases to the Fifth Circuit, where they could get a sympathetic panel of judges and perhaps eventually take those cases to the conservative-majority Supreme Court.

“Someone might say, ‘You know, where else is Texas supposed to sue?’ but the claims that Texas brings are claims that any state could bring. Republican state attorneys general are choosing to file these lawsuits in Texas,” he said. “They do it for a reason. And that reason is the same reason why the Supreme Court is now in this position.”

In recent weeks, the policymaking body of the federal judiciary issued guide encourage courts to adopt case assignment systems that would curb litigants’ efforts to funnel cases with national consequences to single-judge divisions. However, the new recommendations are optional and the U.S. District Court for the Northern District of Texas – where the abortion pill case was filed – has said will not make changes to its case assignment protocols.

Shadow File Showdowns

The tension between the Fifth Circuit’s relentless boldness and the Supreme Court’s relatively more deliberative approach is most evident on the high court’s shadow agenda, where justices have just days to decide whether to stay lower court rulings.

One of those episodes, which arose from a lawsuit targeting the Biden administration’s efforts to curb online misinformation, concerned a court order partially upheld by the Fifth Circuit that would have restricted the types of communications that certain administration officials Biden could have with social media companies. The justices – despite public disagreement from three conservative members of the high court – temporarily lifted the restrictions and heard oral arguments in March.

Earlier this year, a 5-4 Supreme Court Cast out a Fifth Circuit order that prevented the US Border Patrol from removing razor wire installed on the US-Mexico border by Texas Governor Greg Abbott.

There were also dramatic back-and-forths in the late summer and early fall over the Biden administration’s regulations banning so-called ghost guns, which are untraceable homemade firearms.

The high court voted for the first time 5-4 in favor reset regulations in August, putting on hold a lower court judge’s ruling – which the Fifth Circuit had not altered – that would have invalidated the ban. Two months later, the Biden administration asked the Supreme Court to intervene again after the Fifth Circuit left in place a lower court judge’s ruling blocking regulations for two manufacturers in particular.

Those actions by the lower courts, U.S. Attorney General Elizabeth Prelogar told the Supreme Court, “effectively nullified this Court’s authoritative determination of the status quo that should prevail during the appellate proceedings in this case.”

The Supreme Court revived the regulations once again, in a brief order with no dissent noted.

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