Supreme Court pushes back on 5th Circuit’s conservative breeding ground

In case after case this term, the Supreme Court rejected decisions from the federal appeals court with a reputation as the nation’s most conservative. 

The 5th U.S. Circuit Court of Appeals has become a breeding ground for legal challenges against Biden administration policies brought by Republican state attorneys general and conservative legal powerhouses alike. 

But the cases that progressed one step higher did not fare as well.  

All nine justices voted to toss an abortion pill lawsuit. Eight upheld the federal gun possession ban for domestic abusers. Seven rejected a challenge that could’ve upended the Consumer Financial Protection Bureau. 

In total, the Supreme Court reversed or vacated the 5th Circuit in eight of the 11 appeals heard this term. 

The outcomes rein in a legal system that has delivered considerable wins for conservative plaintiffs as it steadily moved to the right in recent years. 

Former President Trump made appointing conservative judges a priority during his White House term, solidifying a rightward bent in the 5th Circuit by appointing six judges to its bench, a substantial number only beat by Trump’s appointees to one other appeals court. President Biden so far has appointed two 5th Circuit judges. 

Today, 12 of the 17 judges in active service on the court were appointed by Republican presidents.  

The Biden administration has frequently appealed unfavorable 5th Circuit decisions to the nation’s highest court. The disputes span from culture war battles to attempts to claw back the “administrative state.” 

And for the most part, the Justice Department found success, even with the Supreme Court’s conservative majority.

Unanimously, the justices reversed the 5th Circuit’s decision that would’ve restricted access to mifepristone, the common abortion pill, in a lawsuit brought by a group of anti-abortion doctors and associations. 

All nine justices agreed the plaintiffs never had the right to sue, known as standing, preserving access to the abortion pill without ever reaching the merits of the case. 

Rejecting one of the challenger’s theories, Justice Brett Kavanaugh said adopting it would necessitate “sweeping doctrinal change” that could not be contained. 

“We decline to start the Federal Judiciary down that uncharted path,” he wrote for the court. “That path would seemingly not end until virtually every citizen had standing to challenge virtually every government action that they do not like.” 

Similarly on standing grounds, the Supreme Court rejected the 5th Circuit’s decision finding the Biden administration coerced social media companies into taking down content that officials viewed as misinformation. 

“The Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous,” Justice Amy Coney Barrett, one of Trump’s appointees, wrote for the six-justice majority. 

The lower court decision only gained favor with the court’s three leading conservatives: Justices Clarence Thomas, Samuel Alito and Neil Gorsuch. 

The 5th Circuit didn’t only experience losses, however. 

The Supreme Court did affirm decisions that struck down the Trump-era bump stock ban, invalidated the Securities and Exchange Commission’s in-house enforcement system and rejected an undocumented immigrant’s paperwork challenge to their removal order. 

But those cases were in the minority, with nearly three-quarters of the 5th Circuit appeals heard by the Supreme Court this term now wiped.

When it came to the Second Amendment, eight justices in United States v. Rahimi voted that the 5th Circuit went too far when it struck down a federal provision making it a crime to possess firearms while under a domestic violence restraining order. Only Thomas agreed with the lower court. 

The Supreme Court upheld the provision, handing a win to the Biden administration and chastising the 5th Circuit for reading the high court’s expanded Second Amendment test too broadly. 

“That error left the panel slaying a straw man,” Chief Justice John Roberts wrote for the majority. 

The 5th Circuit now must confront how the slap back impacts a series of other Second Amendment challenges. 

Perhaps most notably, the court must decide whether to stand by its previous opinion voiding some applications of the federal crime for unlawful drug users to possess guns. Hunter Biden, the president’s son, was convicted on the charge last month, though his appeal is proceeding in different circuit. 

A 5th Circuit panel on Tuesday heard oral arguments in one of its pending challenges to the provision. Rahimi was mentioned more than a dozen times. 

“Now with the benefit of Rahimi from the Supreme Court, I think they want us to look at this from every different point of view that we can imagine in order to render the best opinion we can,” U.S. Circuit Judge Kurt Engelhardt, a Trump appointee, noted at the argument. 

At the Supreme Court’s direction, the 5th Circuit will also take a second look at its decision rejecting a challenge to Texas’s law that regulates social media platforms’ content moderation policies, which was passed over accusations Big Tech had censored conservatives. 

All nine justices agreed to send back the case and a similar one that arose from a different lower court. But six justices singled out the 5th Circuit for going astray in its First Amendment analysis, with the majority opinion giving extensive guidance to avoid future error. 

“[T]here has been enough litigation already to know that the Fifth Circuit, if it stayed the course, would get wrong at least one significant input into the facial analysis,” Justice Elena Kagan wrote for the majority.