The headline on the opinion piece from The Washington Post’s Ruth Marcus was immediately memorable: “The 5th Circuit is staking out a claim to be America’s most dangerous court.” Marcus was referring, of course, to the 5th Circuit Court of Appeals — one of the federal judiciary’s 12 appeals courts — which was already far to the right when Donald Trump took office.
The Republican then added six more ideologues to the bench, making it considerably worse. From Marcus’ column:
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 — the least wedded to respecting precedent or following an orderly judicial process.
The same column quoted law professor Stephen Vladeck, who argued that the 5th Circuit is “as conservative a federal appeals court as any of us have seen in our lifetimes.”
That column, however, was published in August 2021. Nearly three years later, the radicalism of the circuit, dominated by GOP-appointed jurists, is even more obvious.
In fact, you don’t need to take my word for it. Listen instead to the U.S. Supreme Court — which is also dominated by Republican appointees, but which keeps overturning the 5th Circuit’s most indefensible rulings.
“The Fifth Circuit is dominated by Republican appointees and has issued a series of aggressively conservative rulings that have met a frosty reception at the Supreme Court, itself quite conservative, on issues like immigration, abortion pills, contacts with social media companies and so-called ghost guns,” The New York Times explained late last week. “Some of those Supreme Court rulings were tentative, but the overall picture is one of an appeals court out of step with the justices.”
And that’s not necessarily easy. This is, after all, the most far-right Supreme Court in nearly a century.
But therein lies the point: When this very conservative high court effectively keeps telling an even-more-extreme appellate bench, “You guys are going too far, too often,” it helps make clear just how radical the 5th Circuit has become.
The case about domestic abusers’ access to guns? Conservatives on the Supreme Court said the 5th Circuit court got it wrong.
The case about the structure of the Consumer Financial Protection Bureau? Conservatives on the Supreme Court said the 5th Circuit court got it wrong.
The case about a Texas woman who sued her local city for what she claims was a politically motivated arrest? Conservatives on the Supreme Court said the 5th Circuit court got it wrong.
The mifepristone case? Conservatives on the Supreme Court said the 5th Circuit court got it wrong.
These rulings were issued just this month — and the month isn’t over yet. [Update: The list is still growing.]
If recent history is any guide, some conservative readers will see this and respond, “See? The Supreme Court is more mainstream than the left makes it out to be.”
It’s not nearly that simple. Both things can be true simultaneously: The current Supreme Court, a third of which was chosen by Donald Trump, is further to the right than any high court since before World War II, and the 5th Circuit Court of Appeals has gone so far off the rails that it’s a caricature of a partisan and radicalized federal bench.
But just as important is the near future. As MSNBC’s Chris Hayes summarized last week, “One way to think about the stakes of a Trump second term is him having an opportunity to turn the Supreme Court into the 5th Circuit.”
I think that’s right, and I’d add that there are also 11 other circuit courts that Donald Trump and his Republican allies would love to transform into mirrors of the 5th Circuit.
