The U.S. Circuit Court of Appeals for the 5th Circuit, traditionally a gatekeeper to the U.S. Supreme Court, has recently been criticized for its role in allowing extremist lower court judges to issue sweeping rulings that advance right-wing policy positions. This behavior is viewed as undermining stable jurisprudence and affecting the American public negatively.
The 5th Circuit serves Texas, Louisiana, and Mississippi and has been described as the most right-wing federal appellate court in the country. It has had an unprecedented number of politically charged cases before the Supreme Court involving issues such as abortion, guns, immigration, and federal power.
Critics argue that the 5th Circuit's decisions are based on unmoored legal theories and unprecedented procedural maneuvers. They suggest that this court is facilitating a judicial power grab where federal judges with lifetime appointments are not held accountable for implementing their own policy preferences, thereby stripping power away from elected officials and American voters.
This term alone, the Supreme Court is considering several 5th Circuit cases with significant implications. These include decisions that undermine domestic violence survivors' safety by allowing abusers access to firearms; restrict use and availability of mifepristone, a drug used in over half of all U.S. abortions; prohibit federal law enforcement and Centers for Disease Control and Prevention from communicating with social media platforms on matters of critical public importance; and undermine functional governance at the federal level.
The 5th Circuit's influence extends beyond its rulings. The circuit comprises 12 judges nominated by Republican presidents and five nominated by Democratic presidents. Half of these Republican-appointed judges were nominated during the Trump administration.
During this period, six judges with particularly partisan backgrounds were appointed. Their decisions have often aligned with long-standing right-wing policy goals. For example, Judge Cory Wilson declared that the Consumer Financial Protection Bureau was unconstitutional based on its source of funding—a decision far removed from existing jurisprudence.
Judge shopping—strategically filing cases in certain courts to draw a sympathetic judge—has been another concern. The structure and venue rules of several district courts within the 5th Circuit have enabled right-wing litigants to hand-pick judges for their cases, contravening the principle that litigants should not choose which judge hears a case.
In response to pressure to reform these single-judge divisions, the Judicial Conference of the United States recently amended its policy to encourage random assignment for cases filed in divisions across districts where litigants are looking to bar state or federal action. However, this policy was met with resistance from Republican senators and right-wing legal community members.
Critics argue that Congress could act to prevent some of the 5th Circuit's conduct by passing legislation that codifies the Judicial Conference's recommendations regarding randomization of case assignment. This would not completely solve the judge shopping issues in certain divisions in Texas, but it is seen as a good start.
As unelected judges continue to amass power reserved for other branches, critics warn that the constitutionally guaranteed balance of power suffers—as does Americans’ faith that their government serves all people, not just those with means and influence.
