This article is republished from: conversation Under Creative Commons License. Read the original article, “The surprising history of the Fifth Circuit Court of Appeals, once a leader in expanding civil rights, now a leader in limiting government power.”
By Jonathan Entin, Professor Emeritus of Law and Adjunct Professor of Political Science, Case Western Reserve University
The U.S. Court of Appeals for the Fifth Circuit has developed a reputation for surprisingly conservative rulings. One of the recent decisions could disrupt the work of the Consumer Financial Protection Bureau, another could hinder the federal agency's ability to enforce regulations, and a third could effectively ban medication abortions .
Today, the Fifth Circuit looks very different than it did a half century ago, when it was at the forefront of civil rights advancement. The 5th Circuit is currently handling cases in three states: Mississippi, Louisiana, and Texas. Until 1982, it also included Alabama, Georgia, and Florida (the entire Civil Rights-era Deep South).
Then, as now, the Fifth Circuit had a complicated relationship with the Supreme Court, which was ideologically aligned with the lower courts. At times, the Fifth Circuit has attempted to do more than the Supreme Court on some issues. But the high court hesitated to condemn the Fifth Circuit.
Therefore, understanding the work of the Fifth Circuit can provide important insight into broader legal trends in the United States.
weakening the power of federal agencies;
Because the Supreme Court can only handle a limited number of cases each year, it seeks to establish general principles that lower courts can apply.
The Federal Court of Appeals oversees the work of federal district courts in applying these general principles. Because the devil is in the details, appellate courts can interpret these principles broadly or narrowly, and in doing so can routinely uphold or undermine Supreme Court decisions.
Several recent Fifth Circuit rulings threaten to undermine the power of federal agencies.
One notable example is that of mifepristone, a drug that induces abortion. In August 2023, the Fifth Circuit refused to allow the Food and Drug Administration to relax the conditions under which the drug could be used. If the Supreme Court upholds this ruling, a pregnant person's ability to have an abortion could be severely curtailed. This could also lead to widespread challenges to FDA decisions about the safety and effectiveness of drugs and medical devices.
Then, as now, the Fifth Circuit had a symbiotic relationship with the Supreme Court. The ruling on this term will further clarify the operation of that relationship.
The Fifth Circuit proposed an alternative basis for restricting access to mifepristone. The document expressed some sympathy for the plaintiffs' broad interpretation of the Comstock Act of 1873, an anti-corruption law that prohibited the shipment of “drugs, medicines, articles or articles designed, altered or intended to produce abortions.” . But such an interpretation could make virtually all abortions illegal. That's because not only medications, but almost everything used in surgical abortions are shipped across state lines.
Other Fifth Circuit decisions against the federal government are also pending before the Supreme Court this term.
One notable example of this could be undermining the agency's ability to enforce regulatory laws through traditional in-house hearings. The Fifth Circuit ruled that the Securities and Exchange Commission must conduct jury trials in federal court instead of internal hearings, that a statute giving the SEC discretion over its use of agency hearings is unconstitutional, and that administrative law judges preside over agency hearings. Appointed illegally. If this ruling stands, it could stymie numerous agencies that enforce federal regulations through in-house hearings.
In the second case now before the U.S. Supreme Court, the Fifth Circuit ruled that the Consumer Financial Protection Bureau's funding mechanism was unconstitutional. That's because the agency gets its money from the Federal Reserve, not Congress.
The ruling could invalidate not only the Consumer Financial Protection Bureau, but the Federal Reserve itself and the entire Social Security program, including Medicare, which is defunded by Congress.
The 5th Circuit has also interpreted gun rights broadly in cases that have called into question many gun laws, including rejecting a law banning people with domestic violence restraining orders from possessing firearms and invalidating federal regulations on ghost guns. .
These rulings are part of a striking pattern of limiting federal power that makes the Fifth Circuit unique among federal appellate courts across the country.
But this isn't the first time the 5th Circuit has stood out.
strengthening racial segregation
After the landmark ruling of the Supreme Court in 1954 Brown v. Board of EducationThe old Fifth Circuit, which outlawed racial segregation in public schools, had a courageous record in advancing civil rights.
Fifth Circuit judges have written or upheld rulings requiring desegregation of public schools, universities, and other public facilities throughout the Deep South.
These judges struck down segregation ordinances that were a key goal of the 1955-1956 Montgomery bus boycott that made Martin Luther King Jr. a celebrity and helped galvanize the civil rights movement. The Fifth Circuit also held Mississippi's governor and lieutenant governor in contempt of court in 1962 for ignoring desegregation orders.
In short, the current Fifth Circuit looks very different than its predecessor. There is no small irony in the fact that the Fifth Circuit is housed in a court named for John Minor Wisdom, one of the heroic judges of the civil rights era.
limits on federal power
But it's not just the 5th Circuit that has changed. The same goes for the Supreme Court, which is currently dominated by conservative judges.
Supreme Court ruled Brown v. Board of Education They wanted to desegregate public schools, but the judge could have made the process run more smoothly by entrusting enforcement to federal district judges who knew the local situation well. That approach has too often led to foot-dragging and tremendous resistance. Nonetheless, the Fifth Circuit's stubbornness furthered the Supreme Court's ultimate goal of breaking down racial discrimination.
Today, the Supreme Court's priorities are very different. Now judges are more interested in limiting federal power than promoting civil rights.
The current court has undermined the Voting Rights Act, struck down most affirmative action, and denied abortion rights.
Courts have made it more difficult for agencies to carry out new plans through the “critical question” doctrine, which requires explicit congressional approval to address issues with significant economic impacts.
These days, the Fifth Circuit is still pursuing larger Supreme Court goals. At times, the 5th Circuit has gone before the justices, which may explain why the Supreme Court has overturned or limited some of the appellate court's decisions and may do so again this year.
Then, as now, the Fifth Circuit had a symbiotic relationship with the Supreme Court. The ruling on this term will further clarify the operation of that relationship.