Circuit Breakers

Judges reveal themselves in footnotes. They use citations as signals and shout-outs, displaying their predilections and alliances. When Anthony Kennedy and Stephen Breyer served on the Supreme Court, they would occasionally invoke judicial decisions in other countries, not because those rulings were binding in the United States but because they wanted to demonstrate their internationalist inclinations. Likewise, Edith Jones, a judge on the United States Court of Appeals for the Fifth Circuit, sent a message in a footnote in a 2022 opinion.

The Fifth Circuit, which hears appeals from Texas, Louisiana, and Mississippi, is one of thirteen federal courts of appeals: twelve regional courts and one for specialized issues like patent law. There are 179 seats on the circuit courts, and the judges have life tenure. Because the Supreme Court issues fewer than a hundred decisions a year, the circuit courts deliver the final word in tens of thousands of federal cases. The ideological preferences of these judges establish binding precedents for their states and help shape the law of the nation. Their words echo with authority.

The case on which Judge Jones was ruling in 2022 was straightforward. In March 2020 the town of Columbus, Mississippi, like many municipalities around the country, enacted an ordinance to address the Covid-19 pandemic. It required some local businesses, including the Golden Glow Tanning Salon, to close. In response, the salon’s proprietor sued the town for business losses. Because the laws were clear that Columbus had the right to enact the ordinance, the federal district judge in Aberdeen, Mississippi, threw out the lawsuit. Golden Glow then appealed to the Fifth Circuit. In Jones’s opinion for a three-judge panel, she affirmed the district court’s decision—there was really no other choice—but she also took the opportunity to launch a politicized attack on the notion of shutdowns. “Subsequent experience strongly suggests,” she wrote, “that draconian shutdowns were debatable measures from a cost-benefit standpoint, in that they inflicted enormous economic damage without necessarily ‘slowing the spread’ of Covid-19.” She followed that sentence, with its contemptuous scare quotes around “slowing the spread,” with this footnote:

See Great Barrington Declaration, https://gbdeclaration.org (last visited Oct. 24, 2022); Jonas Herby, Lars Jonung & Steve H. Hanke, A Literature Review and Meta-Analysis of the Effects of Lockdowns on Covid-19 Mortality, 200 Studs. in Applied Econs. 1 (2022); Alex Berenson, Unreported Truths about Covid-19 and Lockdowns (2020).

What were these sources that Jones cited? The “Great Barrington Declaration” was a broadside by a group of mostly right-wing academics who inveighed against lockdowns and advocated the uncontrolled spread of Covid in hopes of achieving herd immunity; the American Public Health Association and sixteen other public health and social welfare groups responded with a statement saying the recommendations were “wrong-headed proposals masquerading as science” that would “haphazardly and unnecessarily sacrifice lives.” The second article Jones cited was a non-peer-reviewed study by economists, not public health experts, that cherry-picked research to support its antilockdown conclusions. Finally, Alex Berenson is a New York Times reporter turned spy novelist who became an antivaccine and antilockdown crusader. He was frequently featured on Fox News, where his views clashed with the overwhelming weight of scientific evidence.

In short, Jones’s opinion placed the Fifth Circuit’s imprimatur on the kind of junk science that was then reverberating through conservative media. In a different case in 2022, a panel of three judges on the court considered a lawsuit by employees of United Airlines who sought an injunction, on freedom of religion grounds, to stop the company from imposing a vaccine mandate. Relying on the venerable principle that employees may file a lawsuit only after their employer has taken some action against them, the district court rejected the plaintiffs’ demand that the United policy be enjoined before it went into effect. But the Fifth Circuit panel voted 2–1 to direct the district court to consider halting the vaccine mandate.

That ruling drew an apoplectic dissent from Judge Jerry E. Smith, who like Jones is a Ronald Reagan appointee. Smith was, until recently, among the most conservative judges in the circuit. “In its alacrity to play CEO of a multinational corporation, the majority shatters every dish in the china shop,” Smith wrote. “It rewrites Title VII to create a new cause of action. It twists the record to fit that invention. It defies our precedent and the commands of the Supreme Court.” Smith added, “By today’s ruling, the Good Ship Fifth Circuit is afire. We need all hands on deck.” In at least one respect, Smith was clearly correct: the Fifth Circuit is afire. The court, which is based in New Orleans, has over the past few years become the engine room of the conservative constitutional ascendency.¹ The Fifth Circuit has seventeen active judges—twelve appointed by Republican presidents and five by Democrats. But even this imbalance doesn’t capture what’s happened there.

President Trump named six judges to the Fifth Circuit. They represent a new breed of judicial activists, steeled and trained at the conferences of the conservative Federalist Society, who are attempting to transform the law on a wide range of issues. The court has embraced the long-standing causes of the right: Dobbs v. Jackson Women’s Health Organization, which led the Supreme Court to overturn Roe v. Wade, originated there. Its judges have an expansive notion of the right to bear arms and an aversion to the separation between church and state. But the most striking part of the court’s emerging agenda involves the usually staid realm of administrative law, where it is challenging the very structure of American government. The judges of the Fifth Circuit are seeking, it appears, to declare significant parts of the executive branch unconstitutional.

Two cases from the Fifth Circuit, both now pending before the Supreme Court, demonstrate the stakes. Securities and Exchange Commission v. Jarkesy concerns a routine enforcement action. The SEC proved that an investment fund committed fraud, and the fund asked the Fifth Circuit to overturn the SEC’s imposition of a civil penalty of $300,000 and its order for the return of $685,000 in ill-gotten gains. In Consumer Financial Protection Bureau v. Community Financial Services Association of America, a trade group for payday lenders challenged a CFPB regulation promulgated in 2017 to impose some controls on a notoriously shady industry. In both cases the Fifth Circuit ruled for the plaintiffs on the same ground: not that the individual enforcement actions were defective but rather that the structure of the government agencies—the SEC and CFPB—violated the Constitution. In other words, according to the two decisions, it wasn’t just these two cases that should be overturned but all enforcement actions brought by the SEC and the CFPB.

In the SEC case, the court relied in part on what’s known as the nondelegation doctrine. Since the founding of the agency in 1934, the SEC has had the discretion to decide whether to bring enforcement actions in federal district court or in administrative proceedings. (Administrative proceedings are more streamlined than court cases, with fewer procedural protections for defendants.) In defending the practice, the government argued that the SEC was merely exercising prosecutorial discretion, which is what administrative agencies do all the time. But the Fifth Circuit wrote that the choice of forum had to be made by Congress in a law, rather than by an agency on its own: “Such a decision—to assign certain actions to agency adjudication—is a power that Congress uniquely possesses.” The Fifth Circuit struck down the CFPB rule on related grounds. The bureau is funded primarily by the Federal Reserve, which itself is largely funded by assessments on banks; the involvement of the Federal Reserve in funding the budget of the CFPB is, according to the Fifth Circuit, unconstitutional because of “Congress’s exclusive power over the federal purse.”

This has been a theme of the Fifth Circuit’s attacks on federal agencies: that the executive branch has assumed powers without the appropriate authorization from laws passed by Congress. In another case from 2023, the Fifth Circuit vetoed a decision by the Nuclear Regulatory Commission (NRC) to license a storage facility for spent nuclear fuel. To do so, the court invoked the “major questions doctrine,” which is a recent invention of conservative members of the Supreme Court. According to Chief Justice John Roberts’s 2022 opinion in West Virginia v. EPA, this “doctrine” holds that when an administrative agency takes an action, the court must ask if there are “reason[s] to hesitate before concluding that Congress meant to confer such authority.” Under that vague standard, the Fifth Circuit concluded that while Congress did give the NRC authority to license new nuclear power plants, the issue of whether the NRC also had the right to license fuel storage facilities was a “major question,” which required specific authorization from Congress. In the absence of such an authorization, the agency’s approval of the storage license was invalid.

The Fifth Circuit’s assault on the regulatory state looks less like a good faith application of constitutional principles than an agenda of advocacy for big business, polluters, and white-collar criminals. In theory, Congress could remedy these purported limits on agency authority by spelling out more clearly the powers of the SEC, CFPB, and NRC. “But even if Congress functioned better, they are never going to have the time or the wherewithal or the expertise to legislate in the way the Fifth Circuit is demanding. That’s the point. These cases are about taking the power away from the federal government—period,” Stephen Vladeck, a professor at the law school of the University of Texas who follows the Fifth Circuit closely, told me. “The real upshot of what the judges are doing is deregulation.”

The broader implications of these decisions are striking. If the CFPB funding scheme is unconstitutional because the bureau is not funded exclusively by an annual appropriation from Congress, other major parts of the federal government may be unconstitutional as well. Certainly the operations of the Federal Reserve and other banking regulatory agencies would be struck down, and so, perhaps, would Medicare and Social Security. In the SEC decision, the Fifth Circuit judges offered a sly acknowledgment that they knew what a radical step they were taking: “We recognize that the Supreme Court has not in the past several decades” struck down a law under the nondelegation doctrine. “Several” is an understatement. It has actually been nine decades, and the Court has invalidated laws under the doctrine only twice in its history, both times in 1935.

That was the end of the period when the Supreme Court was overturning New Deal legislation almost as fast as President Roosevelt and Congress were passing it. Thanks to Roosevelt’s eventual eight appointments to the Court, the earlier cases were largely overruled and consigned to the dustbin of history. Later in the New Deal era, the Supreme Court came to recognize that the federal government required modern, flexible tools to address the needs of a vast and complex country. Ever since 1936 or so, the justices have largely taken the judicial branch out of the business of checking the regulatory authority of administrative agencies. But the Fifth Circuit is bringing it back.

The Fifth Circuit is also using administrative law to advance its right-wing agenda on guns and abortion. For example, in early 2023 the full Fifth Circuit overruled a 2018 decision by the Bureau of Alcohol, Tobacco, Firearms and Explosives to ban bump stocks, which effectively turn certain weapons into illegal machine guns. The court did not base its opinion on the Second Amendment, which elsewhere it has interpreted expansively, but rather on bureaucratic grounds, holding that only Congress, not the administrative agency, had the right to make the decision about bump stocks. As the court’s opinion put it, “It is not our job to determine our nation’s public policy. That solemn responsibility lies with the Congress.”

Also in 2023, the Fifth Circuit took a different route to a similar destination when it limited access to the drug mifepristone, which is used to induce abortions. Again, the court did not address the underlying issue—whether women have a constitutional right to end their pregnancies with mifepristone—but rather rejected the procedures employed by the Food and Drug Administration in approving use of the drug. The court suggested that the FDA might, in theory, have the authority to approve mifepristone, but it ruled that the FDA acted in an “arbitrary and capricious” way in doing so. (The Supreme Court has agreed to review both the bump stock and the mifepristone decisions.)

In short, then, the Fifth Circuit and other conservative judges have resurrected or invented a series of doctrines—from nondelegation in the 1930s to “major questions” in the 2020s—in an attempt to cripple the administrative state. In a similar vein, the Supreme Court heard arguments in January in a challenge to the Chevron doctrine, which, if successful, would also limit the authority of administrative agencies. As with the Fifth Circuit’s attack on the SEC, even agencies that have been functioning for decades are not immune. (The Federalist Society recently published an analysis that suggested the National Labor Relations Board was, in its entirety, “unconstitutional.”) If this continues, the question will be whether federal agencies can play this game of constitutional Whac-A-Mole well enough to survive.

The Trump appointees to the Fifth Circuit are all conservative, but one stands out: James Ho, who is waging an all-but-acknowledged campaign to be the next Republican nominee to the Supreme Court. Ho was born in Taiwan and brought to the United States as a child, which would make him the first Asian American justice. He is fifty-one years old, a graduate of Stanford and the University of Chicago Law School, and a former law clerk to Clarence Thomas. After serving in George W. Bush’s Justice Department and succeeding Ted Cruz as solicitor general of Texas, Ho was named to the Fifth Circuit in 2018. He has impressive political connections. Harlan Crow, the Texas billionaire who is now best known as Justice Thomas’s unusually generous friend, hosted Ho’s swearing-in as a judge at his house in Dallas. Crow sent his private plane to bring Thomas from Washington for the occasion, which Cruz also attended.

Ho is the rare federal judge to use his position to launch a political crusade—against what he calls “cancel culture” by “cultural elites.” Following protests against conservative speakers at the Yale and Stanford law schools, Ho and Elizabeth Branch, a Trump appointee on the Eleventh Circuit, made public vows not to hire law clerks from those institutions. (Ho announced his plan to “boycott” Yale in a speech at the Federalist Society, where he is a longtime member and frequent speaker.) Ho’s pugnacious style makes it hard to tell the difference between his public pronouncements and his judicial opinions. This is from a speech: “Cancel culture is also deeply embedded in journalism, entertainment, sports, and the arts.” This is from a Fifth Circuit opinion: “As judges, we apply our written Constitution, not a woke Constitution.”

Ho is an outspoken originalist, which he presents as the only legitimate form of constitutional interpretation. “Every judge swears an oath to uphold the Constitution. Being an originalist is really just part of the job description, because being an originalist just means being faithful to whatever text you’re interpreting,” he said, delivering the 2023 Joseph Story Distinguished Lecture at the Heritage Foundation in Washington. “There is a broad consensus in favor of construing legal texts as written, consistent with their original understanding and public meaning.” Rather, originalism remains highly controversial, including among some conservatives, whether the Bill of Rights should be interpreted exclusively as its words were understood in the eighteenth century.

According to Ho, his stand for principle cost him dearly. “When originalism happens to lead to results despised by the cultural elites who lead the national discourse, originalists face a concerted campaign of condemnation,” he said.

Originalists are disparaged and destroyed. We’re not merely wrong as an intellectual matter. We’re not just disagreeing in good faith about the proper meaning of legal terms. We’re fundamentally bad people who are just too extreme for polite society. We’re mean-spirited, racist, sexist, homophobic. We’re just trolling or auditioning.

In fact, when it comes to the nation’s real “elites,” there could scarcely be a more instructive portrait than the photograph Cruz posted on Twitter of Justice Thomas administering the judicial oath to Ho in front of a mammoth fireplace in Crow’s house. Far from being “destroyed,” Ho has life tenure as an appellate judge, a higher profile than virtually all of his current colleagues, and a realistic chance to join eight new ones in Washington.

The evolution of the Fifth Circuit stands as a useful proxy for the transformation of the Republican Party. In the 1950s and 1960s, the court was dominated by Eisenhower appointees, including John Minor Wisdom, Elbert Tuttle, and John R. Brown. Frank M. Johnson Jr., who was initially an Eisenhower-appointed district court judge in Alabama and also a key figure in this era, later joined the Fifth Circuit as a Carter appointee. The Supreme Court, under Chief Justice Earl Warren, was issuing broad commands to hasten the end of Jim Crow, and the Fifth Circuit judges took responsibility for forcing communities in the South to comply.² (Democratic appointees to the Fifth Circuit, including those of John F. Kennedy, were far more accommodating of local prejudices.) On issues like school desegregation and voting rights, the Eisenhower judges encountered intense local opposition throughout the South, but they were steadfast and even heroic in the face of political attack and social ostracism.³ Though the court’s headquarters in New Orleans is now named after Wisdom, the progressivism of his era is a distant memory. The appointments of Richard Nixon and later Republican presidents turned the Fifth Circuit away from the Eisenhower model, but even that transformation pales next to what’s happened in the past few years.

The politics of the Senate help explain why Republican presidents have been able to shape the court more than Democratic ones. When, for example, Barack Obama was president, the “blue slip” policy was still in effect for both circuit and district courts. That meant that senators had, in effect, veto power over any appointments to their local circuit. In the Trump years, the Senate abandoned the policy for circuit courts while keeping it for district courts, which meant that, in theory, Biden could now fill circuit court judgeships without the approval of the local senators. But Republican senators have refused to approve district court nominees in their states, effectively holding those seats hostage, unless Biden appoints circuit judges to their liking. The result has been torturous negotiations between the Biden White House and Republican senators over these seats. When the two sides have reached agreement, the senators have forced Biden to name ideologically moderate judges to Republican-dominated circuits like the Fifth in return for allowing him to fill district court seats; when they haven’t reached agreement, the district court vacancies have lingered throughout the South. For example, there are currently seven vacancies on the federal district courts in Texas and seven more in Florida, both states with two Republican senators.

The great outstanding question about the current Fifth Circuit is how its decisions will fare at the Supreme Court. So far, the light from the justices appears to be flashing yellow, if not red. Last term, the Supreme Court reversed the Fifth Circuit in seven of the nine decisions it reviewed, despite its 6–3 conservative majority. If the comments of the justices at oral arguments are any indication (and they are imperfect predictors of final outcomes), the Fifth may be off to another rough start this term.

To anyone who hasn’t been following the latest developments in Second Amendment jurisprudence, with its lurch in favor of the right to bear arms, the question in United States v. Rahimi would seem almost preposterously obvious: Should a person who is subject to a domestic violence restraining order be allowed to possess a firearm? The Fifth Circuit said yes, in a decision dense with originalist reasoning and multiple citations to sources in the seventeenth and eighteenth centuries. According to the court, the Second Amendment mandates that even domestic abusers must be allowed to buy and possess firearms. The opinion was written by Judge Cory T. Wilson, a Trump appointee, and joined by Judges Ho and Jones. (Jones, the Reagan appointee who wrote the opinion with the junk science footnote, has proved to be a kindred spirit with the fire-breathing later arrivals on the circuit.)

In the argument on the Rahimi case in the Supreme Court in November, all the justices who asked questions (except Thomas) expressed varying degrees of incredulity at what the Fifth Circuit had held. For the moment, it seemed like the purity of the Fifth Circuit’s reactionary originalism had given way to a more realistic assessment of the Constitution’s commands. When, a few weeks later, the Supreme Court heard the challenge to the Fifth Circuit’s decision in Jarkesy, the case that could cripple the operations of the SEC, the appellate court received a more sympathetic hearing from the justices, though they seemed inclined toward a narrower ruling. On January 22 the Supreme Court voted 5–4 to overturn, at least for the time being, a Fifth Circuit ruling that upheld Texas governor Greg Abbott’s decision to erect a concertina wire barrier along the state’s border with Mexico.

Still, occasional setbacks in the Supreme Court cannot obscure the breadth of the Fifth Circuit’s agenda. Even if the conservative justices were inclined to tame the Trump-appointed activists (which they probably are not), the Supreme Court doesn’t decide enough cases every year to make a meaningful dent. On free speech, the Fifth Circuit upheld a Texas law that bans social media companies from moderating political posts, which would effectively force those companies to allow material that violates their own standards. The court is also no friend to immigrants or to the victims of police misconduct. Last month alone, the Fifth Circuit rejected a Biden administration mandate that Texas hospitals provide emergency abortion care; overruled the Biden administration’s attempt to impose energy efficiency standards on some dishwashers and washing machines; and approved a law passed by the white-dominated Mississippi legislature that created a state-run judicial system to replace a locally elected court in the majority-Black city of Jackson.

The range of the Fifth Circuit’s decisions in just a handful of years demonstrates the importance of lower court judges in any president’s legacy. Trump won confirmation of 54 circuit and 174 district judges; to date, Biden has confirmed 40 circuit judges, 134 district judges, and he has 22 nominees pending. There is no evidence at this point that Trump’s appointees to the Fifth Circuit feel chastened by their reversals at the Supreme Court. There is, rather, every reason to assume that they feel their day will come. And they may well be right.

—February 7, 2024