He added: “This has been a very intentional decision by conservative legal activists to file their cases in the fifth circuit so that they can get the most extreme ruling possible as early as possible in the process.” But its hard-right reputation is also an invitation to outsiders for “forum shopping”, in which a plaintiff or their backers choose a court that will treat their claims most favourably.Ĭhristopher Kang, co-founder and chief counsel of the progressive pressure group Demand Justice, said: “What we’ve seen over the last several years is that conservatives have stacked the fifth circuit with very ultra-conservative ideological judges and so, when particularly controversial issues come up, lawyers from across the country find a way to file in the fifth circuit, which then allows it to hear these cases and have an outsized impact on the development of the law.” Appeals in the ruby red states of Louisiana, Mississippi and Texas naturally go before the fifth circuit. This affects which cases the court is likely to hear. Of course, the Bushes knew all of these people personally, I think, but Trump has really amped it up because he has chosen even more conservative people than the Bushes did.” ![]() ![]() Federal judges have lifetime tenure and typically serve long after the presidents who nominated them have left office.Ĭarl Tobias, a law professor at the University of Richmond in Virginia, said of the fifth circuit’s judges: “The vast majority have been appointed by Republican presidents going back to Ronald Reagan, George HW Bush and George W Bush. All are relatively young: they include Andrew Oldham, a former legal adviser to Texas’s governor, Greg Abbott, who is in his early 40s. Then came Trump, who named six judges to the court, more than a third of its total composition. (In 2015, notably, the court upheld a decision blocking Obama executive orders protecting undocumented immigrants whose children are US citizens.) When two vacancies arose during Barack Obama’s presidency, Republicans managed to derail the nomination process and keep the seats open. Of its 17 active judges today, 12 were named by Republican presidents. The court’s transformation mirrored the politics of the deep south, recruiting from increasingly conservative ranks of judges and legal scholars. In 1964 Time magazine quoted a leading lawyer as saying: “Without the Fifth Circuit, we would be on the verge of actual warfare in the South.” Half a century ago it was seen as a trailblazer as it handled most civil rights cases. On Thursday, for example, it temporarily blocked the release of Trump’s White House records relating to the 6 January attack on the US Capitol.īut the fifth circuit, based in New Orleans, Louisiana, has long shown an ability to punch above its weight. They don’t have the power to overturn settled precedent from the supreme court but, if there are cases where there is no precedent and they’re writing on a clean slate, then they get the first crack at defining what the law is.”Īmong the 13 appellate courts, which typically put cases before three-judge panels, the US court of appeals for the District of Columbia circuit in Washington is widely regarded as the biggest hitter. ![]() Their function is primarily to correct the trial judge if they made a mistake. ![]() Instead 13 appellate courts, each covering a different region, get to rule on most legal appeals around the country.Įdward Fallone, an associate professor at Marquette University Law School, said: “They’re really error-correcting courts. But the great majority of cases never make it that far. The supreme court does indeed have the last word on the constitutionality of contentious laws and bears Trump’s stamp with his three appointees. But the 5th Circuit, the federal appeals court that covers Louisiana, Mississippi and Texas, is staking out a claim to be the most dangerous,” Ruth Marcus, deputy editorial page editor of the Washington Post, wrote in August. “The Supreme Court is, no doubt, the nation’s most powerful court. The court’s willingness to entertain Republican extremism has effectively made it their principal legal bulwark against Joe Biden. The consequences of Trump’s reshaping of the federal judiciary are being felt acutely at the fifth circuit on issues ranging from abortion to immigration to the coronavirus pandemic.
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