The 5th Circuit is staking out a claim to be America’s most dangerous court

The 5th Circuit is staking out a claim to be America’s most dangerous court

Opinion by 

Ruth Marcus

Deputy editorial page editor

August 31, 2021 at 6:37 p.m. EDT

The Supreme Court is, no doubt, the nation’s most powerful court. But the 5th Circuit, the federal appeals court that covers Louisiana, Mississippi and Texas, is staking out a claim to be the most dangerous — the least wedded to respecting precedent or following an orderly judicial process.

The 5th is arguably the most conservative among the country’s dozen appeals courts. It inclined in that direction even before President Donald Trump managed to install six nominees. And they constitute quite a bunch: Stuart Kyle Duncan, who said the Supreme Court’s 2015 ruling establishing a right to same-sex marriage “imperils civic peace” and “raises a question about the legitimacy of the court.” Cory Wilson, who tweeted about Hillary Clinton using the hashtag #CrookedHillary, called the Affordable Care Act “illegitimate” and said he supported overturning Roe v. Wade. James C. Ho, who issued a concurring opinion lamenting the “moral tragedy of abortion.”

How conservative is the court, where 12 of 17 active judges were named by Republican presidents? “As conservative a federal appeals court as any of us have seen in our lifetimes,” says Stephen I. Vladeck, a law professor at the University of Texas, noting that even as the circuit’s conservatives tend toward the extreme end of the spectrum, its liberals aren’t all that liberal.

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One measure: During each of the last two Supreme Court terms, with conservative justices firmly in the majority, the high court has reviewed seven cases from the 5th Circuit. It reversed 6 of 7 decisions in the 2019-2020 term and 5 of 7 in 2020-2021.

These included the appeals courts’ rulings striking down the Affordable Care Act and upholding the constitutionality of a Louisiana abortion law, identical to a Texas statute the justices had tossed out several years earlier — another 5th Circuit special reversed by the high court. If you thought the appeals court judges would have learned their lesson the first time, you don’t know the 5th Circuit.

Texas can ban the abortion procedure most commonly used to end second-trimester pregnancies, a federal appeals court ruled on Aug. 18. (Reuters)

The circuit’s latest shenanigans involve, unsurprisingly, abortion, and Texas’s latest attempt to eviscerate abortion rights. This Texas law, which goes into effect Wednesday, is both blatantly unconstitutional (it purports to prohibit abortion once there is a detectable fetal heartbeat, around six weeks into pregnancy) and an audacious effort to evade judicial review (it leaves enforcement of the ban up to private vigilantes, not state officials.)

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In this effort to end-run and effectively overturn Roe v. Wade, the 5th Circuit has already proved itself an eager co-conspirator. Texas abortion clinics filed suit in federal court challenging the law and seeking to block it from taking effect. A federal judge had scheduled a hearing on whether to grant such an injunction.

But on Friday a panel of the 5th Circuit — two Trump judges and one Reagan appointee — issued an extraordinary order preventing the district judge from going ahead with the hearing, thus letting the law take effect in the interim — all this even as the appeals court refused to speed up its consideration of the case. In a sign of their desperation, the clinics appealed that action to the Supreme Court, not exactly a friendly venue these days for abortion rights.

Irregular doesn’t begin to describe what’s going on here — but it’s par for the course from the 5th Circuit. This is a court that goes out of its way to reduce procedural obstacles and give a helping hand for litigants whose causes they favor.

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It is lunacy to allow a law to go into effect that no one can reasonably argue is constitutional, at least not under current law. To do so threatens the ability of women in Texas to exercise what continues to be their constitutional right; clinics and other providers, meanwhile, may shut down rather than face ruinous fines.

As Vladeck explains, “It ought to be a no-brainer that while we’re hashing out these messy questions of who the right defendants are, you put the law on hold while you figure out whether the law is constitutional.” Especially when everyone knows it’s not — at least until the Supreme Court says something different.

Speaking of which: The high court has before it an abortion case that raises the question of the continuing validity of Roe. In that case, which involves a Mississippi law that bars abortions after 15 weeks, Texas has joined other states in asking the justices to overrule Roe.

And maybe they will. In the meantime, though, we must proceed under the rule of law, not the rule of ideologues.