Conservatives' Supreme Court pipeline is failing (2024)

America's conservative legal movement found a fast track to get their high-stakes cases before the Supreme Court, but even Republican-appointed justices on the bench are pushing back on those efforts.

The Supreme Court heard oral arguments in more than 50 cases during the 2023-2024 term and the plurality of those have come from the 5th U.S. Circuit Court of Appeals. Yet, less than a third of the appeals court's rulings were affirmed by the high court.

This term, the Supreme Court only agreed with the 5th Circuit on three of the 10 cases from the appeals court. On the other seven—which included major cases related to abortion, gun control, administrative power and social media regulation—the Supreme Court reversed the 5th Circuit's ruling or vacated judgment.

"It's definitely been striking the degree to which the 5th Circuit has lost at the Supreme Court," Alison LaCroix, a law professor at the University of Chicago, told Newsweek. "It's more than most other circuits, but it's also notable because the Supreme Court doesn't have to take any of these cases."

"They could decide not to review a decision from any lower court and say, 'We're not going to take a second look at this,'" LaCroix said. "But the fact that they take the appeals from the 5th Circuit, in many instances, has proven to mean that they want to overturn, or at least give a hard look at what the 5th Circuit's done."

Covering federal judicial districts in parts of Louisiana and Mississippi and the entire state of Texas, the 5th Circuit has earned a reputation for becoming a hotbed where right-wing activists are likely to see favorable rulings from the most conservative federal appeals court in the country. Nearly 75 percent of the court's 26-judge bench has been appointed by a Republican president. Six are appointees of former President Donald Trump.

"The conservative legal movement uses the Fifth Circuit as a testing ground for many of their legal theories and arguments," Alex Badas, a professor specializing in judicial politics at the University of Houston, told Newsweek. "They understand that it is possible to get favorable decisions from these courts and that helps legitimize their theories and argument."

Because most of the judges on the 5th Circuit champion a conservative interpretation of the law, the appeals court has become a magnate for litigation, especially for plaintiffs trying to challenge the authority of federal agencies. Although last month's landmark Supreme Court decision reversing the 40-year-old Chevron deference came from the D.C. Circuit Court of Appeals, an equally important ruling related to administrative power emerged from the 5th Circuit.

On June 27, the Supreme Court ruled on Securities and Exchange Commission v. Jarkesy, siding with a Houston-based hedge fund manager and agreeing that people accused of fraud by the federal agency have a right to a jury in a federal court. In a 6-3 decision along ideological lines, the justices said the SEC violates this right by allowing in-house judges to adjudicate these cases. SEC v. Jarkesy is one of the three cases from the 5th Circuit that the justices affirmed this term.

The appeals court's willingness to side with conservatives had made it a home for judge-shopping plaintiffs, who want to find sympathetic judges to hear their cases. One of the most ideologically conservative judges in the federal courts is Judge Matthew Kacsmaryk, a Trump appointee who has served as a district judge for the Northern Texas District Court since 2019.

Kacsmaryk has made national headlines for sparking a legal firestorm after he halted approval of the nation's most common method of abortion and for ordering the Biden administration to reinstate the Trump-era "Remain in Mexico" border policy. His record, which suggests that Trump tapped him to serve largely because of his extremely conservative political views, has not gone unnoticed by Republicans.

Conservative groups and Texas Attorney General Ken Paxton have filed countless cases in Kacsmaryk's jurisdiction in hopes that he'll hear those cases and rule against Democratic policies or uphold Republican ones. If a party were to appeal Kacsmaryk's ruling, the case would move up to the 5th Circuit.

This term, the Supreme Court heard its first major abortion case since overturning Roe v. Wade—Food and Drug Administration v. Alliance for Hippocratic Medicine—which challenged FDA approval of the abortion pill mifepristone.

In the lower courts, the case was presided over by Kacsmaryk, who issued an unprecedented injunction that suspended the drug's approval. A three-judge panel on the 5th Circuit tossed out part of Kacsmaryk's decision, acknowledging the statute of limitations to challenge the FDA's 2000 approval had expired, but kept the part of the injunction that invalidated the changes the FDA made in 2016.

The Supreme Court unanimously ruled in favor of the FDA in June, finding that the Alliance did not have standing to bring the case, and fully restoring access to mifepristone.

LaCroix said plaintiffs not only try to file suit in the 5th Circuit because they'll get a favorable decision but because many of the judges have been willing to issue nationwide injunctions, which are "a big win" for plaintiffs who want to challenge the federal government's actions.

"Since many of these decisions often change the status quo by declaring a law or policy unconstitutional or by overturning a precedent the Fifth Circuit sort of forces the Supreme Court's hand and causes them to review the Fifth Circuit's decisions," Badas said.

He added that he was not surprised that so many 5th Circuit rulings were overturned because, "While the current Supreme Court is conservative, the Fifth Circuit is much more conservative."

Justice Brett Kavanaugh warned in an opinion that the 5th Circuit's mifepristone decision could lead courts down an "uncharted path" that would allow citizens to challenge "virtually every government action they do not like."

Chief Justice John Roberts also devoted an entire paragraph to the errors he saw with the 5th Circuit's ruling in the Supreme Court's majority opinion in United States v. Rahimi. At one point, Roberts said the 5th Circuit errored in focusing on "hypothetical scenarios" instead of likely constitutional scenarios, which "left the panel slaying a straw man."

Rahimi was a Second Amendment case that challenged a federal ban on firearms for people under domestic violence restraining orders. The 5th Circuit had invalidated the law, but the Supreme Court reversed the appeals court decision in an 8-1 ruling and upheld the ban.

"It's healthy for the system to see some resistance to [the 5th Circuit], both from the Supreme Court," LaCroix said. "The court really is an outlier and it needs to be checked."

Dan Urman, a law professor who specializes in the Supreme Court at Northeastern University, told Newsweek he agreed that the justices were sending a "clear message" that the 5th Circuit's rulings were going "too far in the conservative direction." But he added that this concept is not without precedent.

"In the 90s and 2000s the 9th circuit went too far in the liberal direction, and this is similar but on the other side of the ideological divide," Urman said.

The 9th Circuit has appellate jurisdiction over Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, most of California and parts of Washington.

While the Supreme Court may be cautioning the 5th Circuit about its rulings, some of the justices on the bench have also signaled to the appeals court that it would be willing to side with them given the right case and right plaintiff. For example, even though Justice Clarence Thomas authored two opinions rejecting the 5th Circuit's interpretation of the law, the most conservative member of the Supreme Court also suggested he'd be willing to review other cases that challenge social media moderation, gun control and other issues.

LaCroix said that when conservative Supreme Court justices signal that there could be standing or that certain procedural hurdles can be overcome with a different case involving a different plaintiff, the judges on the 5th Circuit may read that as a sign that they were not completely wrong on the law.

Instead, she said they may understand that message as the Supreme Court told them to regroup and change the way they're deciding these cases. Both the 5th Circuit and litigators may think that the high court is telling them to "try again," and so, "the Fifth Circuit might not necessarily respond to these overrulings by changing its course."

Badas said he didn't expect the trend to change anytime soon. He noted that the Supreme Court has already overturned the 5th Circuit at similar rates in recent years, but that those decisions did not deter the appeals court.

During the 2022 term, the Supreme Court overturned the 5th Circuit 62 percent of the time. The appeals court was overturned 75 percent of the time in the 2021 term, 77 percent of the time in the 2020 term and 63 percent of the term in 2019.

Badas speculated that part of the reason why these conservative judges have not changed their interpretation of the law in response to the Supreme Court's rulings is because they may be vying for the justices' position themselves.

"Many of the judges on the Fifth Circuit have been floated as potential Supreme Court nominees if Donald Trump is elected to the presidency again," Badas said. "So, these judges might want to broadcast their conservative bona fides to make themselves more appealing to Donald Trump."

"These judges will continue to be conservative in their decisions and the conservative legal movement will continue to target the Fifth Circuit because it is where they are most likely to receive a positive appellant decision," he said.