One publicly mourned the “moral tragedy of abortion”. Another suggested that same-sex marriage “imperils civic peace”. A third tweeted negatively about Hillary Clinton using the hashtags #CrookedHillary, #basketofdeplorables and #Scandalabra.
James Ho, Stuart Kyle Duncan and Cory Wilson are among six judges appointed by former president Donald Trump to the US court of appeals for the fifth circuit, skewing one of the most conservative – and influential – courts in America even further to the right.
The consequences of Trump’s reshaping of the federal judiciary are being felt acutely at the fifth circuit on issues ranging from abortion to immigration to the coronavirus pandemic. The court’s willingness to entertain Republican extremism has effectively made it their principal legal bulwark against Joe Biden.
“The Supreme Court is, no doubt, the nation’s most powerful court. But the 5th Circuit, the federal appeals court that covers Louisiana, Mississippi and Texas, is staking out a claim to be the most dangerous,” Ruth Marcus, deputy editorial page editor of the Washington Post, wrote in August.
The supreme court does indeed have the last word on the constitutionality of contentious laws and bears Trump’s stamp with his three appointees. But the great majority of cases never make it that far. Instead 13 appellate courts, each covering a different region, get to rule on most legal appeals around the country.
Edward Fallone, an associate professor at Marquette University Law School, said: “They’re really error-correcting courts. Their function is primarily to correct the trial judge if they made a mistake. They don’t have the power to overturn settled precedent from the supreme court but, if there are cases where there is no precedent and they’re writing on a clean slate, then they get the first crack at defining what the law is.”
Among the 13 appellate courts, which typically put cases before three-judge panels, the US court of appeals for the District of Columbia circuit in Washington is widely regarded as the biggest hitter. On Thursday, for example, it temporarily blocked the release of Trump’s White House records relating to the 6 January attack on the US Capitol.
But the fifth circuit, based in New Orleans, Louisiana, has long shown an ability to punch above its weight. Half a century ago it was seen as a trailblazer as it handled most civil rights cases. In 1964 Time magazine quoted a leading lawyer as saying: “Without the Fifth Circuit, we would be on the verge of actual warfare in the South.”
The court’s transformation mirrored the politics of the deep south, recruiting from increasingly conservative ranks of judges and legal scholars. Of its 17 active judges today, 12 were named by Republican presidents.
When two vacancies arose during Barack Obama’s presidency, Republicans managed to derail the nomination process and keep the seats open. (In 2015, notably, the court upheld a decision blocking Obama executive orders protecting undocumented immigrants whose children are US citizens.)
Then came Trump, who named six judges to the court, more than a third of its total composition. All are relatively young: they include Andrew Oldham, a former legal adviser to Texas’s governor, Greg Abbott, who is in his early 40s. Federal judges have lifetime tenure and typically serve long after the presidents who nominated them have left office.
Carl Tobias, a law professor at the University of Richmond in Virginia, said of the fifth circuit’s judges: “The vast majority have been appointed by Republican presidents going back to Ronald Reagan, George HW Bush and George W Bush. Of course, the Bushes knew all of these people personally, I think, but Trump has really amped it up because he has chosen even more conservative people than the Bushes did.”
This affects which cases the court is likely to hear. Appeals in the ruby red states of Louisiana, Mississippi and Texas naturally go before the fifth circuit. But its hard-right reputation is also an invitation to outsiders for “forum shopping”, in which a plaintiff or their backers choose a court that will treat their claims most favourably.
Christopher Kang, co-founder and chief counsel of the progressive pressure group Demand Justice, said: “What we’ve seen over the last several years is that conservatives have stacked the fifth circuit with very ultra-conservative ideological judges and so, when particularly controversial issues come up, lawyers from across the country find a way to file in the fifth circuit, which then allows it to hear these cases and have an outsized impact on the development of the law.”
He added: “This has been a very intentional decision by conservative legal activists to file their cases in the fifth circuit so that they can get the most extreme ruling possible as early as possible in the process.”
In October the fifth circuit temporarily reinstated Texas’s abortion law, the most extreme in the country, which bars the procedure as early as six weeks into pregnancy and outsources enforcement of the ban to ordinary citizens. Earlier this month it issued a stay freezing the Biden administration’s efforts to require workers at companies with at least 100 employees be vaccinated against Covid-19 or be tested weekly.
Kang remarked: “Time and time again, the fifth circuit is the place for the most extreme rulings to come forward and then the question is whether or not the supreme court will step in or how the supreme court will react.”
So far the fifth circuit has frequently proven too extreme even for a supreme court that has a solid conservative majority. The higher court reversed six of seven decisions by the fifth circuit in the 2019-2020 term and five of seven decisions in the 2020-2021 term. Among them were fifth circuit rulings upholding a Louisiana abortion law and striking down the Affordable Care Act.
Trump appointed more than 200 judges to the federal bench, including almost as many federal appeals court judges in four years (54) as Obama did in eight (55) – partly because Mitch McConnell, the Republican majority leader in the Senate, thwarted many Obama appointees. Trump “flipped” the balance of several appeals courts to a majority of Republican appointees.
Biden, however, has set about reversing the trend with impressive speed. Kang commented: “There definitely is grounds for optimism in that President Biden and Senate Democrats are prioritizing judges like never before on the Democratic side. I do think they are on pace for President Biden to appoint more appellate judges than Trump did in his first year.”
Biden’s emphasis on professional diversity is also encouraging, Kang continued. “Public defenders and civil rights lawyers and union-side labour lawyers – the kinds of lawyers who have been traditionally excluded from the bench are being elevated now and that is tremendously important.
“The question is, how many vacancies will President Biden be able to fill? Because these are lifetime judgeships, you’re only able to fill vacancies when a judge retires or passes away. President Biden is filling these vacancies very quickly but at some point there may not be any more vacancies to fill.”
Conservatives, however, reject the premise that Trump warped the lower courts so they no longer represent the will of the people on reproductive rights and other issues. Curt Levey, president of the advocacy group the Committee for Justice, said: “Polling indicates that something like 70, 75% basically think that there should be some protection of abortion but that it shouldn’t be abortion on demand – a moderate position which hasn’t been able to be enacted because of Roe v Wade.
“Depending on what the supreme court rules, it and the fifth circuit might very well be right in the middle of American public opinion. I could name a bunch of issues like that so I don’t know that I buy that the fifth circuit is any more out of step with the American people than some of the more liberal circuits. The circuits tend to reflect America because it’s a number of presidents, going back to Reagan, who have appointed the judges.”