It’s one thing for conservative judges to reach conservative outcomes. It’s something else entirely for them to ignore the Supreme Court and standard court procedures in order to reach those outcomes. Yet in recent months, that’s exactly what the radical U.S. Court of Appeals for the 5th Circuit—which has jurisdiction over Texas, Louisiana, and Mississippi—has been consistently doing.
Two recent challenges to federal government efforts to address the COVID-19 pandemic illustrate the problem. In both cases, the 5th Circuit let normal court procedures fall by the wayside—and in both cases, it appeared to do so in order to evince its hostility not only to the Biden administration’s pandemic response, but also to the power of the federal government more broadly.
Consider, for example, the recent litigation challenging the Occupational Safety and Health Administration’s vaccinate-or-test policy. Recognizing that “workers are becoming seriously ill and dying as a result of occupational exposures to COVID-19,” OSHA required businesses with 100 or more employees to have their employees either get the COVID-19 vaccine or comply with enhanced safety measures for unvaccinated employees (including wearing face coverings and weekly COVID-19 testing).
Challenges to the policy were filed in virtually every court of appeals, and under federal law, the challenges were supposed to be consolidated in a single court of appeals via lottery. The lottery process was established in the late 1980s to prevent litigants from trying to game the system by “rac[ing] to the courthouse to get their [challenge] stamped as early as possible under the rule that selected venues based on who filed first.” Under the lottery system, court assignment is entirely random—the court that will hear all of the challenges is picked “from a drum containing an entry for each circuit” where a challenge is pending. This was no secret, and other courts of appeals waited for the lottery to take place so that the assigned court could consolidate the cases and proceed as it thought fit.
But not the 5th Circuit. The 5th Circuit rushed to issue its own stay of OSHA’s policy before the lottery took place—and it did this in November, even though employers were not required to comply with the OSHA policy until January. Ultimately, it was the U.S. Court of Appeals for the 6th Circuit (the lottery winner)—not the 5th—that was supposed to provide the first court ruling on whether the OSHA policy could go into effect. But because the 5th Circuit skipped the line, it had the first say, and the federal government had to begin its litigation in the 6th Circuit by asking the 6th Circuit to lift the 5th Circuit’s stay.
The opinion the 5th Circuit issued to justify its stay dripped with contempt for the OSHA policy, observing that its “strained prescriptions combine to make it the rare government pronouncement that is both overinclusive … and underinclusive” and faulting OSHA for using its emergency authority to respond to a “purported ‘emergency’ that the entire globe has now endured for nearly two years.” It concluded that Congress had not given OSHA authority to promulgate the policy, but it also observed that the policy “raises serious constitutional concerns,” even as it acknowledged that it did not need to decide those issues. Perhaps most notably, the 5th Circuit wrote that the policy “likely exceeds the federal government’s authority under the Commerce Clause”—a position that was more extreme than the one ultimately taken by the Supreme Court when it issued its own stay of the policy (following the 6th Circuit’s decision to lift the 5th Circuit’s stay) on the grounds that Congress hadn’t given OSHA the authority to adopt it.
The 5th Circuit’s handling of a case challenging the federal eviction moratorium—which was promulgated by the Centers for Disease Control and Prevention to limit the interstate spread of COVID-19 by protecting low-income individuals likely to be forced into homeless shelters and other congregate living settings—tells a similar story. In that case, the 5th Circuit went out of its way to ensure that a district court opinion that took an extremely limited view of the federal government’s power under the commerce clause remained on the books. The district court held that “the federal government’s Article I power to regulate interstate commerce and enact laws necessary and proper to that end does not include the power” to impose a federal eviction moratorium. Notably, the Supreme Court’s ruling in a separate federal eviction moratorium case held that the CDC “exceeded” the authority it had been given by Congress, but it strongly suggested that Congress itself would have authority under the Constitution to impose a federal eviction moratorium—the exact opposite of the district court’s conclusion. “It would be one thing,” the court said, “if Congress had specifically authorized the action that the CDC has taken. But that has not happened.”
Notwithstanding the strong indication that even the very conservative Supreme Court would not agree with the district court’s conclusion, the 5th Circuit wanted to protect that decision. After the Supreme Court allowed a U.S. District Court for the District of Columbia judgment vacating the eviction moratorium nationwide to go into effect, the government dismissed its appeal of that decision in the U.S. Court of Appeals for the District of Columbia Circuit. At that point, there was no eviction moratorium in place, so the government moved to dismiss its appeal in the 5th Circuit. Rather than simply granting the motion on the ground that the case was now moot, the 5th Circuit held oral argument and ultimately made its dismissal conditional on the district court decision remaining in place.
And the 5th Circuit’s willingness to ignore the way the courts normally operate extends to ignoring a central tenet of our federal judicial system: that the Supreme Court is the highest court in the land, and its word is binding on lower courts. Recently, 5th Circuit Judge Don Willett—himself a very conservative jurist who was appointed by President Donald Trump—criticized his colleagues for failing to heed the Supreme Court’s recognition that there must be some limits to qualified immunity, the judge-made doctrine that far too often allows state officials to escape liability when they violate the federal Constitution.
In a case called Taylor v. Riojas, Trent Taylor sought to vindicate his Eighth Amendment right to be free from cruel and unusual punishment after he was confined for six days in a cell where he was exposed to pervasive human waste. The 5th Circuit held that Taylor’s Eighth Amendment rights had been violated, but concluded that he could not sue the officers who violated them because the right not to be subjected to such conditions for “so short” a period as six days was not clearly established. The Supreme Court disagreed. Without even holding oral argument, the Supreme Court concluded that because of the “particularly egregious” circumstances of Taylor’s confinement, “any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”
Relying in part on that case, Willett dissented from the 5th Circuit’s decision to grant qualified immunity to police officers who tased an individual who was covered in gasoline, “knowing full well that using a taser was tantamount to using a flamethrower.” The individual died as a result of the tasing. Willett wrote, “In recent months, the [Supreme] Court has signaled a subtle, perhaps significant, shift regarding qualified immunity, pruning the doctrine’s worst excesses. The Justices delivered that message in back-to-back cases, both from this circuit and both involving obvious, conscience-shocking constitutional violations.” Willett viewed the case the 5th Circuit was then considering as “of a piece—yet more troubling,” and he faulted his colleagues for “giving a premature pass to egregious behavior” and “provid[ing] the Supreme Court yet another message-sending opportunity.”
Finally, the most recent example of the 5th Circuit’s gamesmanship was in the news just last week when the Supreme Court’s six conservative justices blessed that court’s effort to further delay resolution of the legal challenge to S.B. 8, Texas’ six-week abortion ban. Writing in dissent, Justice Stephen Breyer faulted the 5th Circuit for “ignor[ing] our judgment.” And Justice Sonia Sotomayor made clear the profound harms that will result: Because the 5th Circuit is “indulging Texas’ newest delay tactics,” Texans are being deprived of their right to access abortion “through procedural manipulation.”
This follows a similar history of delay tactics and ignoring Supreme Court precedent in the S.B. 8 case and other litigation over abortion restrictions. For example, after the Supreme Court refused to grant emergency relief in the S.B. 8 case, and even as the law was going into effect, the 5th Circuit would have kept the law’s challengers from having their day in court for months by keeping the district court proceedings on pause and issuing a briefing schedule that would have put oral argument in December at the earliest—three months after the law went into effect. And in a 2018 case called June Medical Services v. Gee, the 5th Circuit upheld a Louisiana law that required physicians who perform abortions to have admitting privileges at a hospital within 30 miles of the abortion clinic even though the Supreme Court had already struck down a Texas law that was, as Breyer put it, “almost word-for-word identical” to the Louisiana law. All of this is as abnormal as it is troubling.
Indeed, so much of what’s been happening in the 5th Circuit lately is not normal. And while much has rightly been written about how conservative the 5th Circuit is, what is perhaps even more notable than the very conservative outcomes the 5th Circuit so often reaches are the lengths to which it is willing to go to reach those outcomes.