Where to even start in cataloging the most ridiculous—and alarming—recent rulings to come out of the U.S. Court of Appeals for the Fifth Circuit?
There’s a case about whether a class action could go forward that boiled down to a dispute among three Fifth Circuit judges over the meaning of a Bible verse. There’s a case in which the Fifth Circuit allowed three doctors to sue the FDA over a tweet intended to discourage ivermectin use that read, “You are not a horse. You are not a cow. Seriously, y’all. Stop it.” There’s a case in which the Fifth Circuit barred the Biden administration from requiring Navy SEALs to be vaccinated against COVID, because the court’s conception of religious liberty supersedes the military’s need for frontline troops to be healthy. There’s a case in which the Fifth Circuit held that the way Congress funds the Consumer Financial Protection Bureau (a mechanism Congress has regularly used since America’s founding) is unconstitutional because Congress only imposed a limit on the appropriation, rather than putting a precise dollar figure on it. There’s the Fifth Circuit’s repeated insinuation that individual district judges, rather than the Biden administration, are better situated to supervise and direct federal immigration policy. There’s … you get the idea. When the hosts of the popular Strict Scrutiny podcast devoted an entire hour-long episode to flagging especially problematic Fifth Circuit rulings, they ran out of time.
The Fifth Circuit is the federal appeals court covering Louisiana, Mississippi, and Texas (where I live), and it has in recent years become the place where just about every right-wing litigant who can brings lawsuits to test novel and extreme legal arguments. It’s not that a disproportionate percentage of major legal issues are arising in those three states; it’s that conservative and right-wing litigants are deliberately steering disputes to a handful of sympathetic district judges in Texas, from where they know that any appeal will go to the Fifth Circuit—whose judges are far more likely than others in the country to take their side.
A nationwide challenge to the FDA’s approval of mifepristone? Filed in Amarillo. Nationwide challenges to the Biden administration’s immigration policies? Filed in Victoria. Elon Musk’s new (and laughably weak) lawsuit against Media Matters, which has no geographic connection to the Fifth Circuit whatsoever? Filed in Fort Worth. These aren’t exactly destinations for vacations, but they’re the typical destinations today for overwhelming majority of litigation with an obvious rightward ideological or partisan tilt. [Continue reading…]