What to Know in Washington: Fifth Circuit Stumbles Before SCOTUS

Decisions coming out of a notably conservative federal appeals court keep getting knocked down by the Supreme Court, most recently in a decision that reinstated President Joe Biden’s immigration enforcement policies.

The US Court of Appeals for the Fifth Circuit has had only two of its eight rulings upheld by the justices so far this term with one more decision still to come in a potential blockbuster over Biden’s student loan forgiveness plan. It’s an unexpected track record for rulings coming from one conservative court up for review by another, and a sign that the justices may be pushing back on an appeals court that refuses to rein in aggressive litigation by the state of Texas and others.

Photographer: Stefani Reynolds/Bloomberg

The US Supreme Court

The Fifth Circuit, which covers Texas, Louisiana, and Mississippi has become a magnet for challenges to Biden administration policies, ranging from abortion access to LGBTQ rights and immigration. The cases are often filed by the state of Texas or Republican state attorneys general as a group.

Critics say Republican attorneys general see a path to success by choosing district courts within the Fifth Circuit where they’re almost guaranteed to get a sympathetic judge as the first step toward similarly assured outcomes in the Fifth Circuit and Supreme Court. The results this term at the high court, however, suggest victory isn’t a sure thing.

That may be, in part, because some members of the Supreme Court’s 6-3 conservative wing, including Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, are being a bit more moderate than the Fifth Circuit. President Donald Trump further tilted the court to the right with six appointments to the New Orleans-based court.

What’s most notable isn’t that the Fifth Circuit record is two wins and six losses, said University of Texas at Austin School of Law professor Stephen Vladeck. “What’s revealing is I think five of the six are ideologically charged cases and so it’s not that the Fifth Circuit is getting reserved that often, it’s that it’s getting reversed in the kinds of cases where you wouldn’t expect it,” he said. Lydia Wheeler and Kimberly Strawbridge Robinson have more details about the court’s record.

BIDEN’S AGENDA

• At 11:45 a.m., President Biden and Vice President Kamala Harris will make an announcement about high-speed internet infrastructure at the White House. Commerce Secretary Gina Raimondo will also attend.
• Biden and Harris will have lunch together at 12:30 p.m.
• Press Secretary Karine Jean-Pierre will give a briefing at 2 p.m.

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To contact the reporter on this story: Brandon Lee in Washington at blee@bgov.com

To contact the editor responsible for this story: Kayla Sharpe at ksharpe@bloombergindustry.com