The Trumpiest court in America
The United States Court of Appeals for the Fifth Circuit is where law goes to die.
By Ian Millhiser
Trent Taylor says his cell, in a Texas psychiatric unit operated by the state’s prison system, was covered in human excrement. Feces smeared the window and streaked the ceiling. Someone had painted a shit swastika on the wall, alongside a smiley face. According to Taylor’s allegations in a federal lawsuit, there was such a thick layer of dried human dung on the floor of the cell that it made a crunching sound as he walked naked across the cell.
Taylor alleged that he was kept in this cell for four days, where he neither ate nor drank due to fears that the excrement, which was even packed inside the cell’s water faucet, would contaminate anything he consumed. Then, on the fifth day, he was moved to a bare, frigid cell with no toilet, water fountain, or bed. A clogged drain filled the new cell with choking ammonia films. With nowhere to relieve himself, Taylor held his urine for 24 hours before he could do so no longer. And then he had to sleep alone on the floor while covered in his own waste.
The Supreme Court eventually ruled 7–1 that Taylor’s lawsuit against the corrections officers who forced him to live in these conditions could move forward, and that lawsuit settled last February. But the Supreme Court had to intervene after an even more conservative court, the United States Court of Appeals for the Fifth Circuit, attempted to shut down these claims against the prison guards.
A unanimous panel of three Fifth Circuit judges held that it was unclear whether the Constitution prevents prisoners from being forced to remain in “extremely dirty cells for only six days” — although, in what counts as an act of mercy in the Fifth Circuit, the panel did concede that “prisoners couldn’t be housed in cells teeming with human waste for months on end.”
This decision, in Taylor v. Stevens, is hardly aberrant behavior by the Fifth Circuit, which oversees federal litigation arising out of Texas, Louisiana, and Mississippi. The Fifth Circuit’s Taylor decision stands out for its casual cruelty, but its disregard for law, precedent, logic, and basic human decency is ordinary behavior in this court.
Dominated by partisans and ideologues — a dozen of the court’s 17 active judgeships are held by Republican appointees, half of whom are Trump judges — the Fifth Circuit is where law goes to die. And, because the Fifth Circuit oversees federal litigation arising out of Texas, whose federal trial courts have become a pipeline for far-right legal decisions, the Fifth Circuit’s judges frequently create havoc with national consequences.
The Fifth Circuit has, in recent months, declared an entire federal agency unconstitutional and stripped another of its authority to enforce federal laws protecting investors from fraud. It permitted Texas Republicans to effectively seize control of content moderation at social media sites like Twitter, Facebook, and YouTube. Less than a year ago, the Fifth Circuit forced the Navy to deploy sailors who defied an order to take the Covid vaccine, despite the Navy’s warning that a sick service member could sideline an entire vessel or force the military to conduct a dangerous mission to extract a Navy SEAL with Covid.
As Justice Brett Kavanaugh wrote when the Supreme Court restored the military’s command over its own personnel, the Fifth Circuit’s approach wrongly inserted the courts “into the Navy’s chain of command, overriding military commanders’ professional military judgments.”
And this is just a small sample of the decisions the Fifth Circuit has handed down in 2022. Go back just a little further, and you’ll find things like a decision endangering the First Amendment right to protest, or another that seized control over much of the United States’ diplomatic relations with the nation of Mexico. In 2019, seven Fifth Circuit judges joined an opinion that, had it been embraced by the Supreme Court, could have triggered a global economic depression unlike any since the 1930s.
Its judges embrace embarrassing legal theories, and flirt with long discredited ideas — such as the since-overruled 1918 Supreme Court decision declaring federal child labor laws unconstitutional. They abuse litigants and even each other. During a 2011 oral argument, the Court’s then-chief judge, Edith Jones, told one of her few left-leaning colleagues to “shut up.”
And while the Fifth Circuit is so extreme that its decisions are often reversed even by the Supreme Court’s current, very conservative majority, its devil-may-care approach to the law can throw much of the government into chaos, and even destabilize our relations with foreign nations, before a higher authority steps in. Worse, the Fifth Circuit’s antics could very well be a harbinger for what the entire federal judiciary will become if Republicans get to replace more justices.
The median Fifth Circuit judge is very far to the right — more so than the Court’s current median justice, Brett Kavanaugh. But the typical Fifth Circuit judge would also be quite at home alongside a Republican stalwart like Justice Samuel Alito, or a more nihilistic justice like Neil Gorsuch.
How the Fifth Circuit became a far-right playground
Two generations ago, the Fifth Circuit was widely viewed as a heroic court by proponents of civil rights, handing down aggressive decisions calling for public school integration and protecting voting rights — even in the face of opposition from other, prominent judges.
Very soon after Brown v. Board of Education (1954) determined that racially segregated public schools violate the Constitution, a panel of federal judges in South Carolina handed down an influential opinion, in Briggs v. Elliott (1955), that effectively strangled Brown in its cradle. Brown, the court claimed in Briggs, “has not decided that the states must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they attend.” To comply with Brown, Briggs suggested, a state must merely offer Black children the choice to attend white schools — and if those children choose to remain in segregated classrooms, that’s not a constitutional problem.
As a practical matter, these “freedom to choose” plans led to very little integration, in no small part because African American families knew full well what the Ku Klux Klan might do to them if they volunteered to send their children to a historically white school. Ten years after Briggs, the Fifth Circuit noted in United States v. Jefferson County Board of Education (1967), the South Carolina school system at the heart of the Briggs case was “still totally segregated.”
Jefferson County was authored by Judge John Minor Wisdom, arguably the greatest of the Fifth Circuit’s judges, whose name adorns the court’s building in New Orleans today. After watching Briggs’s approach fail Black children for 10 long years, Wisdom wrote a lengthy, statistics-laden opinion savaging Briggs and insisting that “the only school desegregation plan that meets constitutional standards is one that works.”
“The Brown case is misread and misapplied when it is construed simply to confer upon Negro pupils the right to be considered for admission to a white school,” Wisdom wrote. “The Constitution is both color blind and color conscious,” he wrote, anticipating modern-day attacks on affirmative action. It must be read “to prevent discrimination being perpetuated and to undo the effects of past discrimination.”
At the time, the Fifth Circuit’s jurisdiction extended over six Southern states, stretching from Texas to Florida (the court was split in half and three of these states were reassigned to a new Eleventh Circuit by a 1980 law), so the aggressive approach to desegregation laid out in Wisdom’s Jefferson County opinion bound many of the states where the need for public school integration was most urgent.
Beginning in the 1980s, however, Wisdom’s influence within his court began to fade. Republican President Ronald Reagan appointed a total of eight judges to the Fifth Circuit — one of whom was Edith Jones, a thirtysomething former general counsel to the Texas Republican Party. President George H.W. Bush added another four judges. The result was that, by 1991, Wisdom complained that his court’s approach to race in education was so harsh that it would even violate the separate-but-equal approach announced in the Supreme Court’s infamous Plessy v. Ferguson (1896) decision.
If any one decision captures the spirit of the post-Reagan, but pre-Trump Fifth Circuit, it’s that court’s decision in Burdine v. Johnson (2000). In that case, a man was convicted of murder and sentenced to die after his court-appointed lawyer slept through much of his trial. One witness recalled that the lawyer fell asleep as many as 10 times. Another testified that the lawyer “was asleep for long periods of time during the questioning of witnesses.”
And yet, a panel of Fifth Circuit judges that included Judge Jones initially voted to let this death sentence stand because it was unable to determine whether the lawyer “slept during the presentation of crucial, inculpatory evidence,” or merely through portions of the trial that the panel deemed unimportant. Eventually, the full Fifth Circuit reheard Burdine and held that the death row inmate at the heart of the case must be retried — but it did so over the dissents of five Fifth Circuit judges.
And the Fifth Circuit has only grown more conservative since these five judges determined that it was no big deal that a capital defendant’s lawyer couldn’t even remain awake throughout his trial.
Trump’s appointees turned the Fifth Circuit into a farce
When former President Donald Trump took office, the Fifth Circuit was already one of the most conservative courts in the country. It also had two vacancies due to a boneheaded decision by former Senate Judiciary Committee Chair Patrick Leahy (D-VT) to give Republican senators a veto power over anyone nominated to a federal judgeship in their home state — thus preventing President Barack Obama from filling these seats during his time in office.
To the first of these two seats, Trump appointed Don Willett, a libertarian provocateur known for speckling his opinions with the kind of platitudes that one might hear from a member of the John Birch Society, a member of the Tea Party, or a participant in the January 6 putsch. Sample quote: “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.”
And then there was James Ho, the former law clerk to Justice Clarence Thomas who labeled abortion a “moral tragedy” in one of his first opinions as a judge. Ho’s very first opinion sought to implement a proposal he first announced in a 1997 op-ed to “abolish all restrictions on campaign finance.” The opinion declared that “big money in politics” was a “necessary consequence” of “big government in our lives.” It also claimed that our current government “would be unrecognizable to our Founders” because the Affordable Care Act exists.
Another Trump judge on the Fifth Circuit, Cory Wilson, published a series of columns in Mississippi newspapers that raise serious questions about his ability to apply the law impartially to Democrats and to LGBTQ Americans. Among other things, Wilson claimed that “intellectually honest Democrat[s]” are “very rare indeed.” He called President Obama a “fit-throwing teenager” because he opposed a Republican proposal to slash Medicaid funding and repeal Medicare and replace it with a voucher program. He wrote that “gay marriage is a pander to liberal interest groups and an attempt to cast Republicans as intolerant, uncaring and even bigoted.” And he also had a Twitter feed that often resembled Trump’s.
Another Trump judge on the Fifth Circuit, Kyle Duncan, spent much of his career as an anti-LGBTQ lawyer. He may be best known for an opinion he authored as a judge, which refused a transgender litigant’s request that Duncan use her proper pronouns.
Duncan also joined an opinion, authored by Trump-appointed Judge Kurt Engelhardt, which blocked a Biden administration rule requiring most workers to either get vaccinated against Covid-19 or take weekly Covid tests. The Supreme Court eventually struck this rule down under a legally dubious, judicially created legal doctrine called “major questions.”
But Engelhardt’s opinion makes this Supreme Court look sensible and moderate. Although federal law permits the Occupational Safety and Health Administration to issue emergency rules to protect workers from “exposure to substances or agents determined to be toxic or physically harmful,” Engelhardt made the extraordinary argument that the novel coronavirus — which has killed over a million Americans — does not qualify as a “substance or agent” that is “physically harmful.”
Nor did Engelhardt stop there. His most aggressive argument implies that the federal government’s power to regulate commerce does not extend to the workplace, which is the same argument the Supreme Court used in a discredited 1918 decision striking down federal child labor laws.
Trump, in other words, took a court that was already a reactionary outlier among the federal courts of appeal, and filled it with judges from the fringes of the legal profession. And those judges gleefully sow chaos throughout the law.
Why the Fifth Circuit in particular can cause so much chaos
One reason why the Fifth Circuit’s decline is so harmful to the nation as a whole is that it oversees federal litigation arising out of Texas.
That’s one part of a perfect storm: Texas’s Republican attorney general and other conservative litigants frequently bring challenges to Biden administration policies in Texas’s federal trial courts. And because those courts often permit plaintiffs to choose which judge will hear their lawsuits, these challenges frequently go before highly partisan judges who issue nationwide injunctions blocking that policy. And then those decisions, which frequently have glaring legal errors that would be obvious to many first-year law students, go to the Fifth Circuit.
This practice has been a particular thorn in the side of the Department of Homeland Security, as Texas has repeatedly obtained orders from Trump judges blocking the Biden administration’s immigration policies. One even forced the United States to change its diplomatic posture regarding Mexico.
One of the federal appeals’ courts most important roles is to keep a watchful eye over federal trial judges, and make sure they don’t issue disruptive, idiosyncratic decisions — or, at least, to make sure that those decisions don’t remain in effect for long. But the Fifth Circuit almost always operates like a rubber stamp for the Trumpiest judges, blessing even the most extreme decisions by trial judges who hope to sabotage Biden’s policies.
Just as often, the Fifth Circuit hands down decisions that seem to come out of nowhere, embracing legal theories that few lawyers have ever even heard of before, and that threaten to shut down much of the federal government and disrupt the nation’s economy. Consider, for example, Community Financial Services v. CFPB (2022), a decision by three Trump judges (Willett, Engelhardt, and Wilson), which declared the entire Consumer Financial Protection Bureau unconstitutional.
The Fifth Circuit’s opinion, by Wilson, claims that the agency is unlawful because of the unusual way that it is funded — rather than receiving an annual appropriation from Congress, the CFPB receives a portion of the funds raised by the Federal Reserve. Wilson claims that this funding structure “violates the Constitution’s structural separation of powers.”
But he’s just plain wrong about that, and his legal reasoning was explicitly rejected by the Supreme Court more than eight decades ago. Wilson relied on a provision of the Constitution stating that “no money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” But, as the Supreme Court held in Cincinnati Soap Co. v. United States (1937), this provision “means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.”
Because there is an Act of Congress creating the CFPB and its funding structure, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the CFPB is constitutional. Wilson’s opinion relies on a fantasy constitution that does not exist.
Three years before its CFPB decision, seven Fifth Circuit judges signed onto another opinion that would have destroyed another entire federal agency — and potentially triggered a worldwide economic depression in the process.
The Federal Housing Finance Agency (FHFA) was created in 2008 to deal with the mortgage crisis that triggered a historic recession, and that very well could have led to a second Great Depression if the FHFA had not acted. Over the course of the next several years, the FHFA presided over tens of billions of dollars worth of transactions intended to prop up the US mortgage system and ensure that the American housing market did not collapse.
About a dozen years after the FHFA was created, however, the Supreme Court determined that federal agencies may not be led by a single individual who cannot be fired at will by the president. By law, the FHFA director enjoyed some protections against being fired, and there’s no question that this decision required her to be stripped of these protections.
But in Collins v. Mnuchin (2019), seven Fifth Circuit judges joined an opinion by Judge Willett, which argued that this minor constitutional violation — a violation the Supreme Court didn’t even recognize until years after the FHFA was established — renders everything the FHFA has ever done invalid. When a plaintiff who is injured in any way by one of the FHFA’s actions files a federal lawsuit challenging that action, Willett claimed, the “action must be set aside.”
The immediate impact of Willett’s opinion, had it taken effect, would have been to force the FHFA to unravel more than $124 billion worth of transactions it undertook to rescue the US housing market — more than the gross domestic product of the entire nation of Ecuador. But Willett’s opinion would have gone even further than that, because it would have permitted suits invalidating literally anything the FHFA had ever done since its creation in 2008.
In any event, the Collins case eventually made its way to the Supreme Court, where the justices voted 8 to 1 to reject Willett’s approach. Only Justice Neil Gorsuch thought that toying with an economic depression was a good idea.
But even when the Supreme Court does step in, eventually, to reverse the Fifth Circuit, it often drags its feet. When a notoriously partisan federal trial judge ordered the Biden administration to reinstate much of Trump’s border policy, and the Fifth Circuit rubber stamped that decision, the Supreme Court waited 11 months to intervene — leaving the lower court’s decisions imposing a defeated president’s policies on the nation in place the entire time. A similar drama played out over immigration enforcement.
The result is that the Fifth Circuit, though it does not have the final say, often decides what US policy should be for months at a time. And that’s assuming that the Supreme Court actually reverses the Fifth Circuit — sometimes the Fifth Circuit’s most legally dubious decisions are embraced by a Supreme Court dominated by Republican appointees.
If the Fifth Circuit behaves this badly when powerful litigants are before them, imagine what it is like for the powerless
One of the few good things that can be said about the Fifth Circuit is that it does not have the last word about what the law says. When its judges strike down a federal law, or attempt to destroy an entire federal agency, or declare a national policy unconstitutional, the Supreme Court almost always steps up to hear that case. And the justices do frequently reverse the Fifth Circuit’s most outlandish decisions — even if they take their sweet time before they do so.
But the Supreme Court only hears a tiny percentage of the cases decided by federal appeals courts, and it almost never hears cases brought by extraordinarily vulnerable litigants like Trent Taylor. Indeed, it hears these cases so infrequently that, when the Court decided to intervene on Taylor’s behalf, Justice Samuel Alito wrote a brief opinion complaining that Taylor’s case “which turns entirely on an interpretation of the record in one particular case, is a quintessential example of the kind that we almost never review.”
The Fifth Circuit hears a steady diet of ordinary immigration cases, which will often decide whether an individual immigrant can remain with their family in the United States or whether they must be deported to a nation they may barely know, or where they may fear for their physical safety. These cases are now heard by judges like Andrew Oldham, Trump’s sixth appointment to the Fifth Circuit, who spent much of his time both on and off the bench seeking to make federal immigration policies harsher to immigrants.
Similarly, the court hears a steady diet of employment discrimination cases. These cases are heard by judges like Edith Jones, who dissented in a 1989 case ruling in favor of Susan Waltman, a woman who experienced the kind of sexual harassment that would make any normal person’s skin crawl:
During the summer of 1984, an IPCO employee told a truck driver that Waltman was a whore and that she would get hurt if she did not keep her mouth shut. Later, in the Fall of 1984, several other incidents occurred. A Brown and Root employee, who was working at the mill, grabbed Waltman’s arms while she was carrying a vial of hot liquid; another Brown and Root worker then stuck his tongue in her ear. In a separate incident, an IPCO employee told Waltman he would cut off her breast and shove it down her throat. The same employee later dangled Waltman over a stairwell, more than thirty feet from the floor. In November 1984, one employee pinched Waltman’s breasts. In another incident, a co-worker grabbed Waltman’s thigh.
Jones claimed that Waltman’s employer “did not have actual or constructive notice that Waltman was subjected to a pervasively abusive and hostile work environment,” but Waltman complained multiple times to her supervisors, met with senior managers about the harassment she faced, and announced her intention to resign after a shift meeting where her coworkers made comments that “women provoke sexual harassment by wearing tight jeans” in front of her supervisor.
And then, after determining that these conditions do not amount to actionable sexual harassment, Jones spent the next 33 years hearing other cases brought by workers alleging employment discrimination.
The Fifth Circuit has created a void in the law, where judges ignore horrific violations in between writing opinions claiming that entire federal agencies are unconstitutional. And, barring legislation adding additional seats to the court, things are unlikely to get better anytime soon. Currently, Republican appointees hold 12 of the 17 active judgeships on this benighted court — and nearly all of them are ideologically similar to Jones.
That said, there are reforms that Congress or the Supreme Court could implement, which would diminish both the Fifth Circuit’s power and the power of litigants to channel political lawsuits to highly ideological judges. Congress, for example, may strip the Fifth Circuit of its jurisdiction over certain cases, or require certain suits to be filed in a federal court that is not located in the Fifth Circuit. It could also add seats to the court, which would then be filled by President Biden.
A less radical reform, proposed by former Fifth Circuit Judge Gregg Costa, would prevent litigants like the Texas AG’s office from handpicking judges who are likely to rule in their favor — and whose decisions are equally likely to be affirmed by the Fifth Circuit. Costa proposed having all lawsuits seeking a nationwide injunction against a federal law or policy be heard by three-judge panels, rather than a single judge chosen by the plaintiff. These panels’ decisions would then appeal directly to the Supreme Court, bypassing the Fifth Circuit (although a single Fifth Circuit judge might sit on some of these panels).
Realistically, however, systemic reforms to the problem of judge-shopping — and to the problem of a lawless court of appeals — are unlikely to happen anytime soon. The House of Representatives will soon be controlled by Republicans, who are unlikely to support legislation that reduces the power of their partisan allies on the bench. And the Supreme Court has six justices appointed by Republican presidents.
And so the Fifth Circuit will continue to hand down its decrees, confident that no one with the power to stop them is likely to do so.
