The 5th US Circuit Court of Appeals, known for its conservative rulings, has been responsible for some of the most far-right and sweeping decisions that have been appealed to the Supreme Court. Many of these disputes have played out on the shadow docket, which refers to emergency applications that the high court must decide on a quick timeline, without full briefing or oral arguments. Despite both courts leaning heavily to the right, the Supreme Court has repeatedly overturned rulings from the 5th Circuit at a higher rate compared to other federal appeals courts.
Recent disputes from the 5th Circuit include cases involving federal gun restrictions, immigration laws, and the Biden administration’s interactions with social media companies. In a Biden administration challenge to a controversial Texas immigration law, the Supreme Court allowed the law to take effect, but two conservative justices urged the 5th Circuit to conduct a fuller review. The Supreme Court has issued at least five emergency orders in the past year that have reversed or partially reversed the decisions of the 5th Circuit, indicating a divergence in opinion.
The trend of cases coming from Texas and the 5th Circuit has been driven by high-profile legal challenges brought against the Biden administration, particularly by Texas Attorney General Ken Paxton. Texas has become a focal point for culture war issues such as abortion, guns, redistricting, and immigration, which often lead to cases being appealed to the 5th Circuit and subsequently to the Supreme Court. The rise of controversial Trump-appointed judges on the 5th Circuit has also contributed to the increase in cases reviewed by the high court.
Republican attorneys general and conservative litigants have incentives to file in the 5th Circuit due to the judicial assignment system in Texas, where certain divisions have one or two judges assigned a majority of cases. This system allows litigants to potentially pick sympathetic judges for their cases, leading to disputes that could eventually reach the majority-conservative Supreme Court. Recent guidance issued by the federal judiciary aims to curb this practice by encouraging courts to adopt case assignment systems that prevent funneling cases with national consequences to single-judge divisions.
The tension between the 5th Circuit’s bold rulings and the Supreme Court’s deliberative approach is most evident on the shadow docket, where the justices have limited time to decide on pausing lower court rulings. Recent episodes involving the Biden administration’s efforts to curb online misinformation and the removal of razor wire at the US-Mexico border by Texas Governor Greg Abbott have showcased the back-and-forth between the two courts. The Biden administration regulations banning ghost guns also led to conflicting rulings from the 5th Circuit, prompting multiple interventions from the Supreme Court to uphold the regulations.
