Taking The Fifth

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There are several things that are true about the Fifth Circuit. This includes the six cases from the Fifth Circuit that are already granted for argument before the Supreme Court this term, the most from any circuit so far.  It also includes the six judges that former President Trump appointed to the Circuit.  Then there is the speculative. Some argue that the Fifth Circuit is the most conservative circuit in the United States.  Others see it as a stabilizing jurisprudential force.  What has led to this shifting and increasingly important caseload that the Supreme Court has taken a greater interest in? Much likely has to do with a combination of the judges on the circuit and the cases argued there.

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Even with critiques about the number of judges Trump appointed to the Fifth Circuit, the circuit’s decisions have not fared as well as some have speculated they would when reviewed by the Supreme Court in recent terms. In fact, between the 2019 and 2022 terms, decisions from the Fifth Circuit have been reversed more than twice as frequently as they have been affirmed (15 to seven on cases with clear outcomes).  The number of cases and the percentage of the Court’s docket taken from the Fifth Circuit has clearly risen in recent terms though.

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Over Time

Below is a graph showing the comparative number and relative case percentage coming from several circuits including the Fifth (adding more circuits to the graph makes disentangling the position of the Fifth Circuit much more complex).  The percentages are relative only to the circuits covered in the graph and not to all circuits.  The number of cases for the 2023 Term includes grants through October 8, 2023.

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The rise of the percentage of cases coming from the Fifth Circuit parallels in time with Trump’s presidency.  The biggest bump in Fifth Circuit cases occurred from 2020 moving forward when all six of Trump’s nominees to the Fifth Circuit were confirmed.  Here is a breakdown of active judges from the Fifth Circuit by appointing president.

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Not only do Trump’s appointments outnumber the appointments from any other president by at least a ratio of 3:2 but appointments from Republican presidents outnumber the appointments from Democrats by a ratio of 3:1.  With all of Trump’s judges except for Judge Wilson in place on the Fifth Circuit prior to 2020 (Wilson was confirmed in 2020), it may seem surprising that the Fifth Circuit’s decisions reviewed by the Supreme Court since 2019 were not affirmed at a higher rate.

Voting

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The way things have played out though looks a bit different when examined in greater detail. One area worthy of increased scrutiny is how individual Fifth Circuit judges’ votes have been treated by the Supreme Court. For this, the next graph shows agreement levels between the two levels of judges so that agreement relates to a Fifth Circuit majority vote in a decision that is affirmed or a dissenting vote in a decision that is reversed, and disagreement occurs when a majority vote is made in a decision that is reversed or a dissenting vote is given in a decision that is affirmed.

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The column on the right shows the total votes reviewed by the Court in cases with clear Supreme Court outcomes and clear Fifth Circuit votes (removing votes in part) and the column on the left shows the agreement percentages in blue.  All of Trump’s judges had more than 50% agreement with the Supreme Court’s decisions. Senior judges’ votes are included in this chart as well and Judge King at the top of the graph with a single decision is a senior judge appointed by former President Carter.  This measure, however, avoids relevant nuances in terms of how precedent affects circuit court outcomes that might actually diminish the true agreement between the judges and justices. In the panel decision in the Dobbs case, for instance, Judge Ho voted against the Mississippi abortion statute, but concurred that without established precedent in this case he would have been swayed in the opposite direction.

2023 Term

Now for making sense of what has changed in the Fifth Circuit and in the Supreme Court.  There is an overwhelming number of Fifth Circuit decisions under review by the Supreme Court this term from panels including only Republican appointed judges.  The only panel with a Democratic appointee was from the Devillier case and the panel only released a summary opinion vacating the district court’s decision.  Several Republican appointed judges dissented from the denial to rehear the case en banc including Judges Smith, Elrod, Oldham, Engelhardt, and Wilson.  This lack of Democratic judges on panels is a marked change from cases the Court reviewed from Fifth Circuit decisions in years past.

From these panel compositions and case outcomes one might infer that the Supreme Court will affirm the decisions from the Fifth Circuit at a higher rate than we have seen over the past several terms.  The potential outcome in Devillier is more ostensibly opaque compared with the circuit’s other decisions that will be reviewed this term because of the combination of Fifth Circuit judges voting for and against a rehearing en banc and the state takings issue inherent in the case.

Campos Chavez, another Fifth Circuit decision under review is both less ideological than the other four cases (excluding Devillier) that will be reviewed by the Supreme Court and involves only a summary panel decision.  No Fifth Circuit judges voted to rehear that case en banc.

The other four decisions that the Supreme Court will review from the Fifth Circuit have clearer ideological dimensions that correlate with the mainly conservative views articulated by the Supreme Court Justices.  The Fifth Circuit panel in Consumer Financial Protection Bureau v. Community Financial Services Association of America held that the CFPB’s funding structure is unconstitutional.  The panel in the case was composed of three of Trump’s appointees to the circuit: Judges Willett, Engelhard, and Wilson.  This is also the first decision that the Supreme Court will review directly from a Fifth Circuit panel made up of all Trump appointees.

In another Fifth Circuit case, SEC v. Jarkesy, the Court will also review power delegated to an executive branch administrative agency.  The Fifth Circuit panel in that case voted against the delegation of additional power to the SEC.  The decision came from a split panel with Judges Elrod and Oldham in the majority and Senior Judge Davis dissenting.

Next in United States v. Rahimi, the Fifth Circuit panel composed of Judges Wilson, Ho, and Jones unanimously held that the defendant who had a domestic violence restraining order, retained the Second Amendment right to possess a firearm. If the Court’s decision in Bruen is indicative of the Court accommodating looser positions on gun ownership, then an affirmance in this case is plausible as well.

Finally, in Netchoice v. Paxton, a panel made up of Judges Oldham, Jones, and Southwick split from the 11th Circuit’s decision in a related case and reversed an injunction on First Amendment grounds preventing the enforcement of a Texas statute restricting social media companies from censoring certain views.

Concluding Thoughts

As opposed to previous Supreme Court terms where the justices have taken up few decisions from the Fifth Circuit for review and have often overturned them, the Court has granted more cases from the Fifth Circuit so far this term than from any other circuit and will very possibly affirm a majority of those decisions.

The Fifth Circuit decisions in four of the six cases are in a clearly conservative direction which accords with the Supreme Court’s apparent preference for conservative constitutional jurisprudence. The number of Republican-appointed judges deciding these opinions below also correlates with the plausibility of a higher percentage of affirmed Fifth Circuit decisions than in the past.

These factors are not likely to be limited to this term. As long as the Fifth Circuit is made up of judges who share many of the preferences held by the Supreme Court justices and decides cases with salient topics as perceived by the Supreme Court, we may see a similar pattern for years to come

Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at [email protected]. Find him on Twitter: @AdamSFeldman.

Topics

Adam Feldman, Courts, Fifth Circuit, Supreme Court