The Fifth Circuit's Monday evening arguments were an election-eve warning

In arguments over the Title IX sex discrimination rule, the appellate judges brought vicious anti-trans attacks, surface modesty — and a hope for the future.

The U.S. Court of Appeals for the Fifth Circuit held what appeared to have been the final appellate argument in the nation before Election Day.

In an unusual evening argument, a three-judge panel of the furthest-right appeals court in the nation — that covers Louisiana, Mississippi, and Texas — began arguments in a case over a Louisiana-led, multi-state challenge to the Biden administration’s Title IX sex discrimination educational rule at 5:00 p.m. CT Monday.

It was the second such argument in a series of challenges to the rule — largely focused on opposition to the rule’s protections for transgender students. The Biden administration argues that followed naturally from the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County holding that the sex discrimination provision in Title VII of the Civil Rights Act of 1964 includes sexual orientation and gender identity discrimination. The sex discrimination ban in Tile IX of the Education Amendments Act of 1972, the Education Department essentially stated in a part of the new rule, should be interpreted similarly. (My extensive coverage of this can be found here.)

In some ways, Monday’s Fifth Circuit arguments were similar to last week’s arguments before the U.S. Court of Appeals for the Sixth Circuit. In both cases, there was one Democratic appointee on the panel more supportive of the Justice Department’s defenses of the rule and two Republican appointees skeptical of it — but one of them was open to some procedural arguments from DOJ that could limit the lower court’s ruling.

Monday’s election-eve arguments at the Fifth Circuit also served as a stark reminder of the stakes in the election, however, with each of the three judges on the panel — Judges Jerry Smith, Don Willett, and Dana Douglas — illustrating a different and important point about the courts.

Judge Jerry Smith was vicious on Monday, dismissing the Justice Department’s arguments as ridiculous at times, demeaning trans women, and all but defending anti-transgender harassment. At one point, Smith referred to a hypothetical trans woman in a school as a “big burly guy.” Later, when the Justice Department lawyer, Jack Starcher, began suggesting that a sexist teacher telling all women to drop out of a science or math class would be similar to pervasive anti-trans harassment in school, Smith got angry, telling Starcher that it was absurd to claim that such sexism is similar to a teacher saying "the male students have a penis and the female students have a vagina" and men will be referred to as “he” and women as “she.”

This kind of in-your-face anti-trans rhetoric is unusual in federal courts — even today — and Smith is a warning that it could get much worse.

At the same time, Smith is a reminder of the passage of time. He is the oldest active judge on the Fifth Circuit. A Reagan appointee, he was born in 1946 and has been on the court for more than 30 years. He would turn 80 during the midpoint of next presidential term. There is a good chance the next president could appoint his successor, and he is one of two Reagan appointees still in active service on the court. If nothing else, he and Judge Edith Jones could take senior status should Trump win — allowing a Republican to appoint their successors.

The other two judges on Monday’s panel were a Trump appointee — Judge Don Willett — and a Biden appointee — Judge Dana Douglas.

Although one of the most reasonable of the six Trump appointees on the Fifth Circuit, that is an exceptionally low bar and Willett more often than not goes along with the extreme Trump appointees like Judges James Ho and Kyle Duncan. He does, however, have the capacity to reason. And we saw that on Monday, as he asked questions about the breadth of the action and the scope of the injunction blocking the Biden administration’s rule.

Ultimately, though, they were questions at the margins. It was judicial modesty — but only on the surface. Willett was the judge who started the line of questioning about pronoun usage that ended with Smith yelling at the DOJ lawyer, and Willett did not appear to be anywhere near supporting the substance of the rule’s transgender-related protections — a fact that requires shielding ones eyes from that Bostock decision.

Willett is 20 years younger than Smith — and four of the other five Trump appointees on the Fifth Circuit are younger than Willett. Any new Trump appointees would doubtless be younger still. And for all of his far-right rulings, any independence he does show likely exists because his nomination was secured in the first year of the Trump administration. That was long before the current version of Trump’s inner-circle had devolved into what it is and a time when many of the judicial nominees, while extremely conservative, were mostly nominees (like now-Justices Neil Gorsuch and Brett Kavanaugh) who likely would have at least been considered for the roles by most Republican presidents.

A new Trump administration would be different. Especially when it comes to appellate courts, expect more loyalty-based nominations and more extremists like Duncan, Ho and Judge Andy Oldham who are interested in auditioning for a promotion to the Supreme Court and overturning precedents they don’t like. Ultimately, Willett is a reminder of the long-gone, more-reasonable-end of the first administration of Trump appointees — and he’s still an extremely conservative judge.

Finally, there is Douglas. Nearly a decade younger than Willett, she is a part of Biden’s successful prioritizing of getting Black women confirmed to the appellate bench. Douglas, in her first two years on the Fifth Circuit, already has been finding and asserting her place on the court. Over the summer, I wrote about how Douglas, in a voting rights case, “was writing for the public and the future, given the court’s current numbers” — which include 12 Republican appointees and 5 Democratic appointees.

But, over time, those numbers could change. And while the court is not going to be a court with a majority of Democratic appointees any time soon, a 10-7 (or even 11-6) court would be a lot more manageable given a noted reasonableness — or at least law-based conservatism — from some of the George W. Bush appointees at times.

And, on Monday, we saw Douglas at work, as she forced Willett and the trio of lawyers arguing for the challenge to the Title IX rule to confront their treatment of Bostock. When a lawyer challenging the rule, Autumn Hamit Patterson, said of the Education Department’s rule, that, “for nearly 50 years, that is not how it's been interpreted,” Douglas immediately shot back: “Didn't Bostock also speak to that? Didn't Bostock also say that there could be new, unexpected ways that words are applied?”

While that almost certainly won’t carry the day following Monday’s arguments at the Fifth Circuit, Douglas is a reminder of the possibility for change that another four or eight years of Democratic judicial appointees could bring.