Fifth Circuit keeps Texas anti-drag law on ice as the state's appeal proceeds

Judge James Ho, though, wrote that Texas should immediately be allowed to enforce the law — despite a district judge's ruling that the law is unconstitutional.

On Tuesday, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit allowed the permanent injunction against enforcing Texas’s anti-drag law to remain in place for now.

Back in September 2023, U.S. District Judge David Hittner, a Reagan appointee, issued the permanent injunction after concluding following a trial that the law, passed as S.B. 12, is unconstitutional. The state appealed and asked for a stay of the injunction during the appeal.

A motions panel — which resolves initial matters during appeals — held on Tuesday, essentially, that Texas hasn’t been trying to move this appeal forward quickly so there was no real reason for the panel to act on the stay request.

“This motion does not request either emergency relief or expedited consideration. The Texas Attorney General has instead sought multiple extensions of the deadline to file his opening brief,” the per curiam, unsigned order stated. “Accordingly, the motion for stay pending appeal should be decided by the merits panel. We express no opinion on the disposition of that motion.

As such, the appeals court did not grant the Texas Attorney General Ken Paxton’s request for a stay — but it did not deny the request either. Instead, and this is a not irregular Fifth Circuit practice, they ordered that the motion be “carried with the case” so that the merits panel can address it at a later date. Sometimes, this can be the end of the motion — with the merits panel basically holding the motion through to its resolution of the merits of the appeal. Other times, the merits panel directly addresses the motion.

In short, for opponents of the anti-drag law, this was a good ruling. In fact, it was all the better given that the motions panel included two Republican appointees and only one Democratic appointee.

And yet, it was the Fifth Circuit, so there was a complication.

His name is James Ho.

Although Judge Ho, a Trump appointee, did not, technically, dissent, he nonetheless felt the need to write separately to tell us about the merits of Texas’s case and share with us his view that, “The motion for a stay pending appeal should be granted. Under the order issued today, the argument panel can do so.”

He did all of this in three paragraphs on one page.

And yet, he didn’t even tell us what he wrote — a concurrence, a dissent, a statement, nothing — which is fitting. His writing is simply introduced as such:

In effect, Ho dissented in spirit but chose not to actually dissent because, as he concluded in his little missive, the merits panel could still grant the stay under the order.

In reality, though, it sounds like Ho was willing to roll the dice with the merits panel because he couldn’t get either of the other judges on the motions panel — Judges Edith Jones, a Reagan appointee, and Stephen Higginson, an Obama appointee — to shove aside the trial court’s ruling, ignore the First Amendment, and grant Texas’s stay request.

Now, it’s also possible that Higginson tried to get Jones to outright deny the stay request and she refused to agree to that and this order was the compromise. Even if there was that effort, though, Higginson didn’t choose to write to explain why the stay request should be denied. Neither Jones nor Higginson wrote, so we just don’t know.

All that said, this motions panel order reinforces my reporting from last week here at Law Dork about the three types of judges on the Fifth Circuit.

As I wrote then, “[T]here 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.”

In Tuesday’s order, we got a taste of all three. Ho is a mainstay of the circuit’s “mad vibes” judges; Jones, while certainly extremely conservative, is generally a legal conservative; and Higginson is a legal moderate.

There is certainly more to come in this case as the appeal goes to the merits panel, but Monday’s order kept the the anti-drag law from going into effect — itself a significant sign from the conservative appeals court.