The Volokh Conspiracy

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The Washington Post Profiles the 5th Circuit

"They don’t care about being invited to elite parties in Georgetown.”


Anne Marimow has taken a deep dive on what I've called the second-most interesting court in the land. Sorry D.C. Circuit, you are fairly predictable at this point. Here is the intro:

Months before the Supreme Court overturned Roe v. Wade, the federal appeals court based in this Southern city cleared the way to ban most abortions in Texas. The same court appeared to jump the line to block the White House's signature coronavirus vaccination mandate and split from other courts to back restrictions on social media companies and constrain President Biden's immigration powers.

The U.S. Court of Appeals for the 5th Circuit in New Orleans has long leaned conservative. But the arrival of a half-dozen judges picked by President Donald Trump — many of them young, ambitious and outspoken — has put the court at the forefront of resistance to the Biden administration's assertions of legal authority and to the regulatory power of federal agencies. Their rulings have at times broken with precedent and exposed rifts among the judges, illustrating Trump's lasting legacy on the powerful set of federal courts that operate one step below the Supreme Court. Even some veteran conservatives on the court have criticized the newcomers for going too far.

Four of the six new judges have worked for Republican politicians in Texas, and some are seen as possible contenders for a future opening on the Supreme Court if a Republican is elected president. With their provocative, colloquial writing styles, the judges are elevating their profiles in far-reaching opinions and public appearances, calling out "cancel culture," wokeness and sometimes even one another.

There is a quote from me:

Josh Blackman, a professor at South Texas College of Law in Houston and close observer of the 5th Circuit, said the Trump appointees are "not going to sit and wait for the percolation that might happen otherwise" when they disagree with past rulings.

"They are more aggressive and willing to follow the law as they see it and let the chips fall where they may," Blackman said. "They don't care about being invited to elite parties in Georgetown."

From Aaron Streett:

Aaron Streett, a Houston-based lawyer who practices before the 5th Circuit and was a law clerk to Chief Justice William H. Rehnquist, said the new judges are at the "leading edge of originalist and textualist ideas percolating up in law reviews and conservative public-interest law firms."

"You've got really bright, creative judges who are talented writers and popularizers of these jurisprudential principles," Streett said, adding that they are willing to take what the Supreme Court has said in the past decade and "apply those decisions to their fullest logical extent."….

Streett, the Houston-based lawyer, said he believes that the judges are engaging in "strongly felt conversations about principles," without vitriol between the newcomers and the veterans. "I've seen zero evidence of any ill will or bad blood between any of the judges."

And from Alexa Gervasi:

Alexa Gervasi, a former 5th Circuit law clerk who directs the Georgetown Center for the Constitution at Georgetown Law, said it is no surprise that the court is issuing noteworthy rulings in so many significant cases. "The reason it seems like there's so much fire coming from the 5th Circuit is that they are getting really divisive cases," said Gervasi, who also has practiced before the court. "If you send controversial cases to the 5th Circuit, you're going to get controversial opinions." …

But the combination on the 5th Circuit of big personalities and aspirations — and the large volume of highly charged cases — makes the New Orleans bench a standout.

"Everyone wants to have their say. I don't think that's just posturing for the Supreme Court," said Gervasi, noting the number of judges writing separate dissents and concurring opinions.

Read the entire piece, which I think is a balanced take.