The 13 federal appeals courts across the country sit just below the U.S. Supreme Court. In theory, the appeals courts, each covering a judicial circuit, are equals.
But often enough, one circuit court has taken on an outsize role in shaping seminal constitutional questions that end up before the Supreme Court.
After Sept. 11, it was the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., which took a sympathetic view of the expansive executive powers asserted by President George W. Bush in the war on terror. During the presidency of Donald J. Trump, the U.S. Court of Appeals for the Ninth Circuit in San Francisco emerged as a check on some of the administration’s most contentious policies on the environment and immigration.
Now, the spotlight is on the U.S. Court of Appeals for the Fifth Circuit, as it weighs the fate of a Texas law that would give police officers in Texas the authority to arrest people suspected of having entered the United States unlawfully — a power that has long been understood to rest with the federal government.
It is a case with far-reaching legal and political implications, and it has thrust the Fifth Circuit into the middle of a fierce debate over the extent of federal power over the nation’s borders.
Based in New Orleans, the Fifth Circuit hears cases from three states — Texas, Mississippi and Louisiana. Twelve of its 17 judges were nominated by Republican presidents; six of those 12 were nominated by Mr. Trump.
Many of the Fifth Circuit’s Trump-nominated judges adhere to “originalism,” which seeks to interpret the Constitution through the lens of its 18th-century authors.
That has led the Fifth Circuit to stake out some positions — such as protecting a violent abuser’s legal access to firearms — that even the Supreme Court’s conservative majority has appeared skeptical of. Out of nine Fifth Circuit decisions that were reviewed by the Supreme Court last term, seven were reversed.
Carl Tobias, a professor at the University of Richmond Law School, said that the Fifth Circuit often ends up to the right of even the Supreme Court, and that he has seen some signs that Chief Justice John G. Roberts Jr. tries to “moderate” the circuit’s rulings.
Even so, the Fifth Circuit’s growing role in teeing up Supreme Court cases is unmistakable. The number of cases from the Fifth Circuit that were taken up by the nation’s highest court has more than tripled over the last seven years.
The rise has been fueled in part by conservative activist plaintiffs, who have filed federal cases in Texas in hopes of finding judges willing to issue nationwide injunctions. The Fifth Circuit also hears appeals to federal cases brought by Texas’ governor and attorney general, who have been mounting legal challenges to federal authority over immigration and the border.
The Fifth Circuit wasn’t always the champion of states looking to resist federal authority. During the civil rights era, the court repeatedly ruled that the federal government could force Southern states to integrate.
The court’s rightward shift can be traced to the early 1980s when Congress split the circuit in half, creating the new 11th Circuit to hear cases from Florida, Georgia and Alabama, and leaving the Fifth Circuit with Mississippi, Louisiana and Texas.
The split was followed by a spate of judicial vacancies that allowed Republican presidents to shape the court. President Ronald Reagan nominated eight judges to the Fifth Circuit; President George H.W. Bush nominated four more.
Even with the addition of two judges nominated by President Biden, the court has remained firmly conservative.
This year, the court has ruled that Texas doctors are not required to provide abortions in the case of a medical emergency, despite Biden administration guidance. It struck down a rule by the Department of Energy that would have made dishwashers and laundry machines more efficient. Last week, it granted an emergency stay at the request of two oil and gas companies, which don’t want to disclose climate-change-related business risks as required by new rules from the Securities and Exchange Commission.
Judge James Ho, one of the Fifth Circuit’s Trump nominees, has called on his colleagues to buck “cultural elites” and stick to originalist readings of the Constitution. “Judges must not be afraid of being booed,” he said in a 2023 speech at the Heritage Foundation.
Stephen Vladeck, a professor at the University of Texas Law School, has faulted the Fifth Circuit, saying that its actions based on originalism are a “power grab,” in which interpretations of history are tailored to deliver the policy outcomes sought by conservatives.
Judge Ho’s appetite for confrontation differs markedly from some conservative Supreme Court justices. Justice Amy Coney Barrett, for example, has cautioned her colleagues not to “amplify disagreement with stridency.” And Chief Justice Roberts has called for “the fundamental principle of judicial restraint” in his concurrence with Dobbs v. Jackson, which overturned Roe v. Wade.
Dobbs, too, reached the Supreme Court after passing through the Fifth Circuit, where Judge Ho was one of three judges to hear the appeal. The panel upheld a lower-court ruling that limited Mississippi’s ability to restrict abortion rights. In his concurrence, Judge Ho wrote that only the Supreme Court could undo its own precedent.
It did exactly that, two and a half years later.