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Even Conservative Supreme Court Thinks Fifth Circuit Often Wrong

The 5th U.S. Circuit Court of Appeals is one of the most famously conservative courts in the country. Here are some recent complaints from the U.S. Supreme Court about their rulings.

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

“Rather than consider the circumstances in which Section 922(g)(8) was most likely to be constitutional, the panel instead focused on hypothetical scenarios where Section 922(g)(8) might raise constitutional concerns. That error left the panel slaying a straw.”

Those rebukes do not come from the liberal justices. They come from Trump appointee Brett Kavanaugh and Chief Justice John Roberts respectively. A recent analysis shows that the 5th Circuit spends a lot of time being wrong on constitutional questions. During the more recent term, the U.S. Supreme Court only upheld three rulings from the 5th Circuit, striking down, dismissing, or sending back eight.

Based in New Orleans, the 5th Circuit covers cases from Louisiana, Texas, and Mississippi. It’s also been the testing grounds for many of the right-wing culture wars that have been launched in the last decade. Dobbs v. Jackson Women’s Health Organization, which led to the loss of constitutional protection for abortion, came through the 5th Circuit.

Local Republicans in the tri-state area know that the 5th Circuit is a fertile ground for unconventional legal theories that further conservative ideals. Texas Tribune did a deep dive on the handful of federal judges that openly use their power to push legal theories up the ladder, hoping to accomplish in the Supreme Court what would usually be defeated at the ballot box.

The recent case against medication abortions that the U.S. Supreme Court threw out (that was what Kavanaugh was responding to), started with one of these judges, U.S. District Judge Matthew Kacsmaryk in Lubbock. He called doctors “abortionists” in his ruling and claimed that mifepristone was starving unborn people to death, a claim that is both unscientific and legally ridiculous. However, by taking that first legal step, he guaranteed the case would reach a sympathetic ear in the 5th Circuit, who often rubber-stamps dubious cases to punt the matter to the high court.

This sometimes works. Dobbs is a shining example of a ruling enabled by the 5th Circuit’s legal gall that made its way before judges that did not need to fear the ballot box.

It’s clear from recent rulings, though, that the U.S. Supreme Court doesn’t exactly love this approach. Unfortunately, this doesn’t change much. The 5th Circuit continually shifts the country right through their rulings. Even when they are rebuked, it doesn’t seem to phase them, and the rebukes, when they come at all from the high court, have been extremely mild.

Jef Rouner
Jef Rouner
Jef Rouner is an award-winning freelance journalist, the author of The Rook Circle, and a member of The Black Math Experiment. He lives in Houston where he spends most of his time investigating corruption and strange happenings. Jef has written for Houston Press, Free Press Houston, and Houston Chronicle.


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