Is the Fifth Circuit Becoming the New Ninth?

The Court is taking more cases from the Fifth Circuit, and its decisions do not appear to be faring well.

As the Supreme Court's docket is shrinking, it is considering an increasing number U.S. Court of Appeals for the Fifth Circuit, and the Fifth Circuit's decisions do not appear to be faring well. This invites comparisons to the Ninth Circuit, which was notorious for issuing decisions out of step with the current Court. The difference, of course, is that the Ninth Circuit was to the Left of the Supreme Court, whereas the Fifth Circuit appears to be to the Court's Right. (I have also blogged extensively on whether the Sixth Circuit became the "new Ninth," at least for a time.)

Over at EmpiricalSCOTUS (the place to go for Supreme Court statistics, especially now that SCOTUSBlog has stopped compiling its StatPack), Adam Feldman has a post analyzing how the Supreme Court has been handling decisions from the Fifth.  It begins:

There are several things that are true about the Fifth Circuit. This includes the six cases from the Fifth Circuit that are already granted for argument before the Supreme Court this term, the most from any circuit so far.  It also includes the six judges that former President Trump appointed to the Circuit.  Then there is the speculative. Some argue that the Fifth Circuit is the most conservative circuit in the United States.  Others see it as a stabilizing jurisprudential force.  What has led to this shifting and increasingly important caseload that the Supreme Court has taken a greater interest in? Much likely has to do with a combination of the judges on the circuit and the cases argued there.

Even with critiques about the number of judges Trump appointed to the Fifth Circuit, the circuit's decisions have not fared as well as some have speculated they would when reviewed by the Supreme Court in recent terms. In fact, between the 2019 and 2022 terms, decisions from the Fifth Circuit have been reversed more than twice as frequently as they have been affirmed (15 to seven on cases with clear outcomes).  The number of cases and the percentage of the Court's docket taken from the Fifth Circuit has clearly risen in recent terms though.

The post also looks at the large number of cases the Court has taken from the Fifth Circuit for this term (and do not forget, others may be coming).

As opposed to previous Supreme Court terms where the justices have taken up few decisions from the Fifth Circuit for review and have often overturned them, the Court has granted more cases from the Fifth Circuit so this term than from any other circuit and will very possibly affirm a majority of those decisions.

The Fifth Circuit decisions in four of the six cases are in a clearly conservative direction which accords with the Supreme Court's apparent preference for conservative constitutional jurisprudence. The number of Republican appointed judges deciding these opinions below also correlates with the plausibility of a higher percentage of affirmed Fifth Circuit decisions than in the past.

These factors are not likely to be limited to this term. As long as the Fifth Circuit is made up of judges who share many of the preferences held by the Supreme Court Justices and decides cases with salient topics as perceived by the Supreme Court, we may see a similar pattern for years to come.

Comments

[SRG2]

One might almost imagine that the 5th Circuit is intentionally moving as far right as it can, giving SCOTUS the excuse to take up their cases - and then establish new conservative precedents that cover the whole country.

[Rev. Arthur L. Kirkland]

Does anyone believe those conservative precedents will survive half as long as Roe did?

I would revise my forecast if conservatives were perfect a machine that mass-produces poorly educated, economically inadequate, gullible, religious, roundly bigoted, disaffected, elderly, rural, drawling white males — and Federalist Society lawyers figure a way to register the newly minted hillbillies to vote. If that were to happen, some of the current Court’s right-wing decisions could last for nearly 50 years.

[The Margrave of Azilia]

"elderly, rural, drawling white males"

And you think it's the hated Other, not yourself, who is bigoted.

[Rev. Arthur L. Kirkland]

That's the Republican-conservative-MAGA base. Which descriptor, in your estimate, is inaccurate?

[The Margrave of Azilia]

You really ought to apply your own standards to yourself, but that may be a bridge too far for you.

[Mr. Bumble]

Kirkland is the other side of the same coin he describes. Fortunately there are few of either.

[SimonP]

This is absolutely what it's doing - push hard to the right, Alito lets a lot of their rulings stand even while under review, Court can't take all of the writs, etc. Combine that with the nationwide injunction and vacatur remedy under the APA, you have a Fifth Circuit that can essentially make law for much of the country without even needing to survive Supreme Court scrutiny.

There was a case relevant to my practice that came up early in the Trump term. The Fifth Circuit's decision was in conflict with every other Circuit's holding on the same point. But the remedy they granted had nationwide effect, and they manipulated the procedure so as to preclude the possibility of appealing to the Supreme Court. So now their ruling is treated as effectively "the law," and the affected regulatory agency is making rules built around the expectation that challenges will be brought specifically in the Fifth Circuit. Like it were the Supreme Court.

It was the first inkling I had that something deeply wrong was going on in the Fifth, and it's only gotten worse.

[LawTalkingGuy]

Maybe. Another possibility is that they’re arrogant, not very good at legal practice, and in such a bubble that they’ll never come close to understanding those flaws. I mean this probably applies to all federal judges to varying degrees, but the Fifth Circuit judges have taken these traits to some new levels of crazy.

[Brett Bellmore]

My impression is that they're taking the majority's reasoning in their recent cases seriously, instead of dragging their heels against it, as some of the other circuits are doing. This sometimes results in their getting out ahead of the Court in areas where the majority isn't yet ready to follow their own reasoning.

[Stephen Lathrop]

The Fifth Circuit decisions in four of the six cases are in a clearly conservative direction which accords with the Supreme Court's apparent preference for conservative constitutional jurisprudence.

Anyone else spot a weasel scampering through that sentence? To me, it reads as a conflation of unlike uses of, "conservative." The first instance refers I think to the partisan character of the 5th circuit, but tactfully omits to say that explicitly. The second instance then sort of excuses the need for tact, by use of a false association of, "conservative constitutional jurisprudence," which really should not be a notion associated with D&R partisan politics.

[Stephen Lathrop]

Also, note the contrast of Adler's almost reproving headline for the OP, with the tone of his concluding two paragraphs, which might as well have been condensed to, "Yay, more good news on the way for corporate America!"

[jb]

Prof. Adler didn't actually write the last two paragraphs...

[David Nieporent]

Don't stop him now; he's on a roll.

[Dr. Ed 2]

I think the most relevant statistic is the percentage of reversals, with number *and* percentage appealed being a close second.

The latter is relevant because some may not be appealed by the losing side lest a "bad" precedent go from circuit to national.

Of course there is also having enough cases to be statically significant...

[Michael P]

I have also blogged extensively on whether the Sixth Circuit became the "new Ninth," at least for a time.

Then isn't the better question whether the Fifth Circuit is becoming the new Sixth Circuit in becoming the new Ninth Circuit?

[MatthewSlyfield]

In fact, between the 2019 and 2022 terms, decisions from the Fifth Circuit have been reversed more than twice as frequently as they have been affirmed (15 to seven on cases with clear outcomes).

Is this actually out of line with the other circuits? I suspect not.
From what I've read in the past elsewhere, over all, across all the circuits, SCOTUS reverses around 70% of the cases on which cert is granted.

Note: The above was from an article disputing that the Ninth was all that bad. The problem from a raw numbers perspective for the Ninth comes from the fact that they have a much higher case load due to being much larger in served population than any of the other circuits. The Ninth is twice the size of the next largest circuit on this measure, serving almost 1/5th of the US population.

[Life of Brian]

Slightly dated, but this 2017 article measured 2007-2016 reversal rates and found an average of 70.2% reversals across circuits. The 9th Circuit weighed in at 75.5%, and the 6th at 88.1%

So yeah, the contextless chin-stoking about the 5th’s current 68% reversal rate seems a bit overwrought.

[Commenter_XY]

Whatever you do, do not use objective data. It disturbs the narrative. 🙂

[MatthewSlyfield]

The article I was thinking of, which is older than the one you cited. actually argued for measuring reversal rate for the Circuit courts as a percentage not of the cases heard by the Supreme court but as a percentage of all of the cases decided by the Circuit court.

[Life of Brian]

I’d be interested in reading that if you can dig it up. Though superficially appealing, it seems like that statistic would be fairly sensitive to 1) relative circuit size, and 2) which circuits tend to draw more hot-button cases. Comparing reversal rates is problematic in its own way since the Supremes generally don’t grant cert to affirm and thus the scale is fairly compressed, but at least intuitively seems less susceptible to distortion than by measuring against baseline, garden-variety cases.

[MatthewSlyfield]

“Comparing reversal rates is problematic in its own way since the Supremes generally don’t grant cert to affirm and thus the scale is fairly compressed, but at least intuitively seems less susceptible to distortion than by measuring against baseline, garden-variety cases.”

I would argue that the proposed measure is not against “baseline, garden-variety cases”. The measure is against cases that have already been granted review by the Circuit courts.

Your “baseline, garden-variety cases” are the ones that never even get appealed to the Circuit courts.

[The Margrave of Azilia]

On which specific issues do they disagree with the Supreme Court? And on those issues, who has the better argument?

[Mr. Bumble]

Off topic, but did the SC add a second Chevron case to enable PBJ to participate?

[Michael P]

I'm skeptical that was the intent, but granting cert in Relentless, Inc. v. Department of Commerce did have that effect.

https://thehill.com/regulation/court-battles/4254920-supreme-court-adds-second-case-in-battle-over-chevron-doctrine/

[Life of Brian]

My initial thought was that taking on a second, identical case was gaming the system and form over substance, but as I game it out I'm not sure it's more than just an effort at decorum given the high-stakes subject matter.

It's a safe enough assumption that Jackson would vote to keep Chevron. That being the case, her vote is irrelevant: if she's the 5th vote in a 5-4 affirmance, the recusal case goes 4-4 which leaves the lower court ruling in place as well. Any other mix of votes also has the same outcome with or without her.

So for better or for worse, as I said I think they're just wanting to have the full court on a decision of this magnitude.

[bernard11]

Lose the PBJ shit, and I might think about taking your BS seriously.

[Mr. Bumble]

No you won't and honestly I don't care.

[bernard11]

Well, I said "might."

[MaddogEngineer]

I've been reliably told by a commenter here, that the Fifth Circuit is much worse already than the Ninth ever was, because the Ninth was never really that bad to begin with.

So you must be mistaken making such a comparison with the Ninth, Professor Adler.

(Note this does not deny the Fifth may be making egregious, repeated legal errors in service to an illegitimate judicial philosophy. But that's sort of like only noticing when Israel retaliates against Hamas, and not Hamas deliberately targeting civilians.)

[Dave_A]

For all of the 5th’s insanity, they at least have not confused the *prohibitive action of a law* with the *punishment imposed for violating that prohibition* – as the 9th recently did in Martin v Boise (when it declared the act of prohibiting public-sleeping/camping a ‘cruel/unusual punishment' - despite that not actually being a punishment).

The 5th is bad (I’d even say worse now), but the 9th is still way, way out there….

[Dave_A]

Any time a circuit becomes so stacked with partisan judges that it produces poorly reasoned, blatantly political decisions it will become what the 9th classically was in the 90s/00s....

The 'current' 5th is so mindbogglingly nuts, in producing 'right wing' but *not conservative* decisions, that one can expect them to be almost overturned by default... Even with a solidly conservative Supreme Court.

[OtisAH]

“The difference, of course, is that the Ninth Circuit was to the Left of the Supreme Court…”

Okay, inarguable, go on.

“…whereas the Fifth Circuit appears to be to the Court's Right.”

This is also… wait, “appears to be”? You get the sense that perhaps maybe the Fifth might be “to the Court’s right” if viewed in certain lighting do you?