How the most right-wing appeals court was reined in by the Supreme Court this term

WASHINGTON ? The conservative supermajority on the Supreme Court would only be pushed so far.

In this year's blockbuster Supreme Court term, there was a notable loser: a Louisiana court that has become the national testing ground for conservative causes.

The New Orleans-based 5th U.S. Circuit Court of Appeals, which hears cases from Texas, Louisiana and Mississippi, is arguably the most conservative appeals court in the nation.

But the high court threw out one conservative challenge to social media content moderation, sent another back to the 5th Circuit for more analysis, and said the appeals court should not have allowed a challenge by anti-abortion doctors to a commonly used abortion drug.

The justices also rejected a conservative-led attack on the Consumer Financial Protection Bureau and said the appeals court was misapplying a previous decision expanding gun rights when it ruled that a domestic abuser can’t be denied a gun.

“It shows that the 5th Circuit was, at the very least, moving too fast for the Supreme Court,” said Adam Feldman, a lawyer and political scientist who runs a blog called Empirical SCOTUS.

This is despite the fact that the court, which now has a 6-3 conservative majority, made a number of controversial right-leaning decisions this term including imposing new hurdles on federal regulatory agencies and granting broad legal protections for the presidency.

To be sure, the Supreme Court did side with the 5th Circuit on two big cases – one that killed off a major gun control effort and another that contributed to curtailing the regulatory power of the federal government.

What's coming up?

The next term will bring more tests from the 5th Circuit.

The high court has already agreed to decide if the appeals court correctly:

• Rejected the Biden administration’s regulation of “untraceable weapons kits known as ghost guns.”

• Upheld Texas’ age verification requirement for porn sites.

• Directed a do-over of the Food and Drug Administration’s rejection of a marketing request for flavored e-cigarettes.

• Rejected a defendant’s appeal based on a 2018 law that changed sentencing rules.

And there’s likely to be more.

The number of cases the Supreme Court has been taking from the 5th Circuit has gone up in recent years.

Previously, most cases appealed to the high court have come from the San Francisco-based 9th U.S. Circuit Court of Appeals, which covers the largest population. But this term, there were 421 appeals from the 5th Circuit compared with 382 from the 9th Circuit, according to Feldman’s review.

While the Supreme Court hears only a small share of appeals, the nine it took from the 5th Circuit was high relative to the population size of the circuit.

"It just kind of shows the growing focus of the 5th before the Supreme Court," Feldman said. "People are looking to the 5th to file certain cases."

The circuit hears appeals from deeply red states where Republicans control legislatures and where attorneys general can draw national headlines with culture war suits against a Democratic president. Federal district courts, particularly in Texas, have become a forum of choice for conservative groups who bet not only on winning but also getting their arguments heard at the Supreme Court when their opponents appeal.

It was a Trump-appointee in Texas, U.S. District Judge Matthew Kacsmaryk, who suspended the Food and Drug Administration's approval of the drug mifepristone. That went too far for the 5th Circuit, which said that only later decisions by the FDA to loosen restrictions on the drug were invalid. But the Supreme Court said the challenge shouldn’t have been allowed at all.

Donald Trump's impact

The 5th Circuit ranks behind the St. Louis-based 8th U.S. Circuit Court of Appeals for the highest share of judges who were appointed by Republican presidents – 71% compared with 91%.

But former President Donald Trump appointed six of the 5th Circuit’s 17 judges, one of the circuits where his flood of nominations over his four years had a significant impact.

Even though Trump also nominated three of the Supreme Court’s six conservative justices, most have not been willing to go as far as the 5th Circuit on causes championed by conservatives.

“The Supreme Court is saying to the legal right broadly, `We are not Santa Clause,’” conservative columnist David French said on the podcast “Advisory Opinions.”

What was rejected

French made that comment after the Supreme Court sided with the Biden administration in a challenge from the 5th Circuit to the administration’s efforts to remove misinformation about vaccines and other issues from social media platforms.

Justice Amy Coney Barrett, one of Trump’s appointees, wrote for the 6-3 majority that the 5th Circuit had wrongly backed a sweeping preliminary injunction against the administration, relied on “clearly erroneous” factual findings by the district court and incorrectly concluded that the challengers had shown they’d been harmed by the administration.

“I do think that the Supreme Court is getting a little bit sick of these cases coming up that have no standing,” said Jeevna Sheth, senior policy analyst for courts and legal policy at the liberal Center for American Progress, referring to the requirement that a petitioner has an addressable harm. “I think (Barrett), especially, was really irritated by the lack of factual basis in that case.”

More: How Amy Coney Barrett emerged as the Supreme Court justice to watch

On anti-abortion advocates’ attempt to curtail access to mifepristone, Justice Brett Kavanaugh – another Trump appointee – wrote the unanimous opinion that the challenge did not belong in the federal courts. Instead, Kavanaugh wrote, the advocates should try to address their concerns through the regulatory, legislative or political processes.

Justice Clarence Thomas, one of the court’s most conservative justices, wrote the 7-2 opinion reversing the 5th Circuit’s ruling that the funding mechanism for the Consumer Financial Protection Bureau is unconstitutional.

High court reversing its own error?

But experts say another of the reversals may not have been the 5th Circuit’s fault.

When the circuit said a ban on domestic abusers having guns was unconstitutional, it was plausibly applying the Supreme Court’s 2022 decision that gun regulations must be "consistent with this nation's historical tradition of firearm regulation" to survive court challenges, said University of Texas law professor Tara Leigh Grove.

“I think what you saw is some justices having second thoughts about what they had said (in the 2022 decision), and kind of pulling back from that case,” Grove said. “So to my mind, that’s more the 5th Circuit held up a mirror to the Supreme Court, and the court didn’t like what it saw.”

Major wins for the 5th Circuit

While the high court affirmed only three of the nine decisions from the 5th Circuit, that win/loss record is consistent with the fact that the court overturns more decisions than it affirms, because it typically declines to hear challenges to rulings it agrees with.

And the ones they affirm can have major consequences.

“There were a lot of cases where (the 5th Circuit) lost,” Roman Martinez, who has argued dozens of cases in the appeals courts and at the Supreme court, said during a recent public discussion at the conservative Heritage Foundation. “I do think it’s important to note that there were also some important ones they won.”

The court’s six conservatives backed the 5th Circuit’s rejection of a major tool used by the Securities and Exchange Commission to fight securities fraud.

And the conservatives agreed that the Trump administration had wrongly banned bump stocks by classifying them as machine guns, a decision not about the 2nd Amendment but about whether a regulatory agency had overstepped its authority.

“Those were huge for administrative law,” Grove said of the bump stock and SEC decisions.

Sheth, of the Center for American Progress, said the fact that the Supreme Court didn’t accept the 5th Circuit’s “most extreme positions,” shouldn’t detract from the fact that the high court is the most conservative it’s been in decades.

“The court is going to look more legitimate, it’s going to look more moderate, if they’re kind of tamping down on the 5th Circuit,” she said. “When, really, none of these cases in the 5th Circuit should be making it up (to the high court) anyway.”

This article originally appeared on USA TODAY: How the Supreme Court reined in the most right-wing appeals court