A Fifth Circuit immigration order lays bare a conservative divide on the appeals court

It's "mad vibes" judges v. legal conservatives in a sign of just how far right the federal appeals court has gone that covers Louisiana, Mississippi, and Texas.

The U.S. Court of Appeals for the Fifth Circuit is extreme. It’s a far-right court that often is so far right that it goes too far even for this U.S. Supreme Court.

A problem with such a far-right court is that it’s sometimes easy to lump everyone together: “Oh, it’s the Fifth Circuit!“

In reality, though, it’s more complicated than that — as seen by a Friday night order out of the appeals court in the ongoing litigation over Texas’s effort to put a floating barrier in the Rio Grande.

With the order, the appeals court showed where and how some judges see limits on their exercise of power — but also where some judges, mostly Trump appointees, see little to no limits aside from their ability to secure a majority of the votes.

It is, in short, a divide between “mad vibes” judges and legal conservatives.

(This issue of Fifth Circuit math also came up recently, although in a less definitive way, when the court held en banc arguments over Mississippi’s lifetime ban on voting for many people convicted of a number of felonies.)

---

So, what’s happening here?

The federal government sued Texas over the barrier, securing a preliminary injunction from U.S. District Judge David Ezra — a Reagan appointee — against Texas in the case. A three-judge panel of the Fifth Circuit, on a 2-1 vote, upheld the injunction, but the appeals court has agreed to hear arguments en banc — from the full court — over the preliminary injunction. The decision to hear the case en banc vacated the panel’s decision.

While the preliminary injunction en banc rehearing was pending, Ezra began proceeding to trial on the merits of the case. This is, everyone agrees, allowed. Texas, however, didn’t like how quickly Ezra did so — and neither did the Fifth Circuit.

Normally, that would be the end of it. Appeals courts are regularly annoyed with district courts. And, if Ezra resolved the case in a way that Texas and the appeals court disagreed with, Texas would appeal and the Fifth Circuit could then act.

This is the judicial process.

But, it’s 2024 and the Fifth Circuit has let it be known that it is game for any argument, so Texas swung for the fences and asked the court to issue a mandamus order against Ezra — ordering Ezra to stop.

Texas pretended it wasn’t seeking such extreme relief, styling the Jan. 24 motion as one asking the appeals court to “stay trial proceedings.” However, it dropped a footnote in the brief stating that “it would also be appropriate to issue a supervisory writ of mandamus or prohibition. If necessary, Texas accordingly asks the Court to construe this emergency motion as a petition for such a writ.”

The full appeals court issued an administrative stay on Jan. 27 halting Ezra’s proceedings at the district court while it considered the request. Two days later, the full court put Ezra’s injunction on hold but otherwise lifted the administrative stay while it continued to consider the request to issue a writ of mandamus against Ezra.

---

First things first: How ridiculous is this request?

Well, the Fifth Circuit rejected it on a 13-5 vote.

That is important.

The most conservative appeals court in the nation overwhelming rejected Texas’s request. A majority of the active Republican appointees on the court even rejected the request — barely, 7-5, but still notable. Those seven were joined by all five active Democratic appointees, as well as Judge Carolyn King, a senior judge and Carter appointee who sat on the three-judge panel so is able to sit on the court for the en banc rehearing as well.

There was no majority opinion resolving the request, which isn’t great for an appeals court hearing a matter en banc, but it is good for our purposes of understanding the Fifth Circuit judges.

Five judges wrote opinions — three concurring with that judgment and two dissenting — establishing three or four groupings of Fifth Circuit judges.

---

Let’s start with the dissenters.

Five judges on the Fifth Circuit believed that the appeals court should order a trial court to stop proceedings based on mad-at-Ezra vibes. Both judges who wrote dissents were Trump appointees and both were joined in the dissent by the other four dissenters. (In other words, both guys wanted to write because they were so mad at Ezra.)

Judge James Ho and Judge Andy Oldham, both auditioning for Supreme Court vacancies, wrote the dissents. (I’m just surprised Judge Kyle Duncan held back, to be honest.) Only one judge appointed by a president other than Donald Trump joined Ho and Oldham’s dissents: Judge Jerry Smith — a Reagan appointee and the oldest active judge on the court, born in 1946. The other Trump appointee, besides Duncan, to join the dissents was Judge Kurt Engelhardt.

“This is a transparent effort to moot our en banc proceedings,” Ho declared in his dissent of Ezra’s decision to start moving the district court proceedings quickly toward trial, and while there were 19 pages of dissents between Ho and Oldham, this is what it boiled down to.

Oldham, seeking to sound above it all, wrote: “In tumultuous times, it is particularly important that our Nation’s courts provide calm, orderly, and dispassionate forums for resolving disputes. I would grant mandamus to restore that order to the district court’s proceeding.”

Of course this is absurd coming from a Fifth Circuit Trump appointee, let alone one who had ruled last year to allow U.S. District Judge Matthew Kacsmaryk to upend the U.S. Food and Drug Administration’s drug process in the mifepristone case — a ruling that the U.S. Supreme Court put on hold. Incidentally, Engelhardt was the other judge in the majority on that motion panel’s short-lived ruling.

So, there are five “mad vibes” judges on the Fifth Circuit.

---

Now, the law judges.

Two judges let us know that they are barely in that group.

This concurrence was written by Judge Edith Jones, the other Reagan appointee and the longest-sitting active judge on the circuit. She was joined by Judge Cory Wilson, Trump’s final appointee to the court. Jones wrote that Ezra’s “plausible goals” for pushing the trial forward were “erroneous” and that she would hold that the district court “abused its discretion” in its order setting the trial-related deadlines. But, those deadlines were already not going to happen (more on that below) because the administrative stay pushed Ezra’s timeline.

As such, Jones concluded, “I reluctantly agree to deny mandamus.”

Then, Judge Don Willett wrote for the legal conservatives on the court.

Willett, Trump’s first appointee to the court, was joined by four other Republican appointees: Chief Judge Priscilla Richman, Jennifer Walker Elrod, and Leslie Southwick — all George W. Bush appointees — and Wilson. (As for Wilson, do what you will with him, given that he signed on to both Jones and Willett’s opinions.)

Willett’s opinion was, effectively, the court’s opinion — but only for understanding what happened, because it represented the middle position of the opinions. It also appears that, at some point, it might have been being drafted as the majority opinion due to the way it is treated by the other judges.

Now, notably, Willett was the dissenting judge in the panel decision on the preliminary injunction appeal. In other words, Willett did not think the district court was right to issue a preliminary injunction in this case (and, on the merits of this case, note that the stay of the injunction was granted on a 12-6 vote along partisan lines). But, he also apparently believes that Texas’s mandamus request went a step too far, concluding, “In our view, the district court’s rushed schedule, while questionable, is not mandamus-able.”

In his six-page concurrence, Willett expressed “misgivings” with Ezra’s handling of the matter, but wrote that “we cannot say that the rigorous criteria for mandamus are fulfilled.”

Then, in a concluding section referenced by Jones in her reason for concurring, Willett noted how the appeals court had, in effect, altered Ezra’s planned schedule:

Finally, there are the legal moderates — or those more left than that — on the court. Judge Dana Douglas, a Biden appointee, wrote a short two-page concurrence for them.

This was an opinion for the six Democratic appointees and — though it appears she was a late addition — Judge Catharina Haynes, a George W. Bush appointee. (I say this because the first footnote in the order states that Haynes “concurs in the judgment without a written opinion.” I asked the court for clarification but have not heard back or seen any correction on the docket.)

The Democratic appointees on this en banc court, as I noted above, include King, a senior judge. The others are Judge Carl Stewart, a Clinton appointee; Judges James Graves Jr. and Steven Higginson, Obama appointees; and Irma Ramirez, Biden’s second appointee to the court.

After some discussion of why, in her view, Ezra’s decisions were sensible in light of the case and circuit precedent, Douglas wrote, specifically responding to Willett’s language, that she found “nothing in the record to support the misgivings surrounding the district court’s decisions concerning its own docket.“

---

In conclusion

At the end of the day, there are essentially three groups of active judges on the Fifth Circuit: There are “mad vibes” judges, legally conservative judges, and legally moderate (or more left) judges.

What that means in practice is that, on procedure, there can be a majority for legally-constrained opinions like we saw last Friday.

But, remember that those numbers still mean that, on substance, it’s still an 11-6 (or 12-5) conservative court.

This distinction is important, both for the rule of law — and for seeing the lasting effect of the four years of Trump’s presidency.