Steve Vladeck: The Fifth Circuit Won by Losing

[In It to Win It]

The Atlantic - Gift Link

One of the surprising themes of the Supreme Court’s term that effectively ended this past Monday was how the U.S. Court of Appeals for the Fifth Circuit—the federal appeals court in New Orleans that hears cases from Louisiana, Mississippi, and Texas—won even as it lost. Of the 11 appeals the justices heard from that court (itself an eye-popping total), the Fifth Circuit was reversed in eight of them—the most reversals, for the second year in a row, of any court in the country from which the Supreme Court took appeals. And many of those reversals were in some of the term’s most ideologically charged cases, such as lawsuits seeking to block access to mifepristone on a nationwide basis, to invalidate the way Congress funds the Consumer Financial Protection Bureau (and a host of other agencies), and to bar the Biden administration from even talking with social-media companies about public-health-related mis- and disinformation.

But for as bad a term as the Fifth Circuit would appear to have had, it still succeeded in shoving American law far to the right. First, even when the Fifth Circuit lost, it usually picked up at least one vote (and as many as three) from the justices, validating the non-frivolousness, even if not the correctness, of its extremist reasoning. Second, the losses have the effect of making the most radical Supreme Court in our lifetime appear to be more moderate than it in fact is—with the Court’s defenders seizing upon some of the reversals of the Fifth Circuit as proof that, despite a rash of controversial, ideologically divided rulings in other cases on everything from January 6 to environmental law to homelessness, the Court really is “surprising” in its moderation. Third, and most important, the Supreme Court still affirmed three of the Fifth Circuit’s outlier rulings—all in cases in which the three more liberal justices dissented. The Fifth Circuit lost a lot—and somehow it still won.

In virtually all of the cases in which the Fifth Circuit was reversed by the Supreme Court, it lost for reasons that point to how extreme its decisions were in the first place. In two of the eight cases, the justices held that the Fifth Circuit was wrong to allow the case to go forward in the first place—holding that the plaintiffs didn’t have standing to challenge the underlying government actions, because they couldn’t show that they were directly harmed by them. One of those majority opinions was written by Justice Brett Kavanaugh; the other by Justice Amy Coney Barrett. What’s more, that made this term the third in a row in which cross-ideological majorities of the Supreme Court rejected standing that the Fifth Circuit had sustained. Standing may seem like a technical, procedural doctrine, but the net result of a court finding standing where none exists is to allow courts to review government policies that should not be up to the courts. In other words, in these cases, the Fifth Circuit is trying to arrogate to itself new constitutional power, and the Supreme Court could not help but reject at least this blatant abuse of authority.