The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In February, a divided panel of the Fifth Circuit decided Sambrano v. United Airlines. This case involved the airline's requirement that employees get vaccinated. Judges Elrod and Oldham held that a federal court could issue a preliminary injunction in a Title VII case. Judge Smith dissented, very vigorously. I wrote about the case here.
Judge Smith was deeply perturbed that the majority chose not to publish its opinion. He called on the Fifth Circuit to grant rehearing en banc, but recognized that review was less likely since the panel opinion was unpublished. He wrote:
The fact that an opinion is unpublished furnishes just another reason to vote to deny en banc scrutiny. But by today's ruling, the Good Ship Fifth Circuit is afire. We need all hands on deck.
On the Fifth Circuit, it takes nine hands to grant review. But Smith only got four. By a vote of 13-4. the en banc court denied en banc. Smith was joined by Judges Higginson, Costa, and Willett. Judge Smith wrote a dissent that explains why the panel opinion troubled him so much. There is some history here.
First, Judge Smith highlights the fact that the majority "discarded" an opinion he wrote in 1989:
And [the panel] resurrects a forty-nine-year-old Fifth Circuit decision that the Supreme Court long ago relegated to the dustbin 4—while discarding a more recent decision that has been cited about three hundred times.5
4 Drew v. Liberty Mut. Ins. Co., 480 F.2d 69 (5th Cir. 1973).
5 White v. Carlucci, 862 F.2d 1209 (5th Cir. 1989) (Smith, J., joined by Politz and King, JJ.).
Here, Judge Smith goes out of his way to stress that he wrote Carlucci–something I did not realize when I read the panel opinion. And this case was released barely two years into Smith's tenure.
Second, Judge Smith flashes back to a Fifth Circuit rule change from 1996.
For reasons that I won't take the time to explain, this court decided that unpublished opinions released in or after 1996 would not be precedential.20 It makes some sense not to clutter reporting services with routine opinions that decide nothing new and affect only the immediate parties.
Judge Smith, however, opposed that rule change. And he wasn't alone.
That change generated considerable discussion. Along with a few other judges, I opposed that amendment even though, by then, all other circuits had chosen that path. We detractors warned, inter alia, that it would be too easy for any given panel majority to avoid the consequences of its decision—regardless of its importance—merely by adding the customary "do-not-publish" footnote. That way, a panel would feel comfortable declaring the winner without worrying about how doing so might affect future cases. Or, for much the same reason, a panelist might condition his or her concurrence on making the opinion unpublished.
It is rare for judges to air internal debates about rule changes. The most recent example I can recall is when Judge Willett referred to an internal court policy on en banc review of interim rulings. Though, this 1996 change is quite old. I'd wager that most of Judge Smith's current clerks were in diapers when President Clinton was re-elected.
Now, Judge Smith charges that Judges Elrod and Oldham exploited the loophole created by the 1996 rule change:
Our concern was prescient. As I say in my panel dissent, the "obvious result" of the majority's decision is to foster today's "'Blue Plate Special' cause" without committing to sweeping legal changes that may not always produce the same outcomes.21 This "'one and done' method of decision-making"22 is made possible only by abusing the availability of unpublished opinions―a device that the full court has now fully validated by denying re-hearing.
Third, now Judge Smith worries that other rogue panels can avoid en banc review by marking the opinion as unpublished:
And by a lopsided vote, the en banc court declines to lift a finger. After today, a future panel that wishes to use the "one and done" method of decisionmaking can feel more secure in thinking there will be no consequences.
Judge Smith concludes:
Although I am confident that my colleagues have good reasons for voting, overwhelmingly, not to vacate the panel opinion and rehear this case en banc, we have squandered an opportunity to recommit to principled decisionmaking.
This result replaces the rule of law with the rule of whim. I respect-fully dissent.
Yet, the Good Ship Fifth Circuit whimsically floats on.
Judge Ho wrote a concurrence to the denial of rehearing. (And for those keeping track, Judge Ho clerked for Judge Smith!) Judge Ho agrees with the panel opinion:
To millions of people of faith—including the members of the Supreme Court—it's painfully obvious that there's no way to calculate damages to compensate for the loss of one's soul.
Judge Ho also addressed a broader issue, that transcends the specifics of this case. Historically, conservatives have tended to favor the cause of corporations over the plight of employees. But in recent years, that trend has reversed as corporations have focused less on shareholder value and more on progressive politics. We are starting to see conservatives seek to use the power of the state to constrain companies that trample on traditional values. Sambrano is an illustration of that new dynamic: a corporation forced its employees to get vaccinated, while diminishing those who sought religious exemptions. (And, with some hindsight, we now know that the two-dose vaccines without a booster shot provided scant protection.)
Judge Ho speaks to these dynamics. He warns that more companies are trampling on religious beliefs–an injury that the panel majority deemed irreparable.
If the dissent is right, and this case is indeed pathbreaking, it's important to understand why. What's new here is not the law, but the behavior of industry. Historically, corporations typically focus on increasing shareholder value—not on imposing certain cultural values on others. But that is rapidly changing. began by imagining a hypothetical employer who doesn't care how productive an employee you might be—he insists that you abandon certain religious beliefs he finds offensive, whether it's abortion, marriage, sexuality, gender, or something else. But here's the thing: What was once hypothetical is now rapidly becoming reality. Examples of this abound. . . . So this case may be the first, but I suspect it will not be the last.
And, in such cases, injunctive relief will become a more common remedy.
My point today is less ambitious: We know what this new corporate trend is doing to employees. It's violating the religious convictions of workers across the country. And in cases like this, the injuries are irreparable. So unlike the dissent, I'm grateful that our court is taking the action it is today. And unlike the dissent, I don't think our circuit will be alone, as cases like this inevitably multiply across the country, assuming corporate trends persist. But if our circuit turns out to be alone in its defense of religious liberty, I'll be grateful for our actions today all the same.
Judge Ho references Vivek Ramaswamy's book, Woke, Inc. Ramaswamy had worked at Goldman Sachs, where he learned of the "Golden Rule" from a colleague:
He laughed and demurred: "Look, just do what the boss says." Then he quipped back: "You ever heard of the Golden Rule?"
"Treat others like you want to be treated?" I asked.
"Wrong," he said. "He who has the gold makes the rules."
I called it "the Goldman Rule." I learned something valuable that summer after all.
The Goldman Rule no longer has a monopoly on the right.
In the past, I have used Judge Jones as the lodestar of the Fifth Circuit's conservatism. And Judge Smith is not far behind. What is the conservative outcome in this case? Ruling for a multinational corporation and against the worker? Or ruling for a Title VII claimant? With so-called woke capitalism, the lines begin to blur.