The Fifth Circuit is still Fifth Circuit-ing

The appeals court takes swipes at the Voting Rights Act and federal control over immigration. Also: Schumer shows how the Hill could respond to SCOTUS overreach.

The U.S. Court of Appeals for the Fifth Circuit issued two rulings this week that show how far it is willing to go in its effort to ignore law when it conflicts with politics.

Both rulings were the result of the court sitting en banc, meaning all of the active members. (Senior judges are also allowed to sit en banc if they had been a judge on the three-judge panel that initially heard the appeal.)

In each case, only one Republican appointee joined the Democratic appointees — resulting in lopsided rulings from the lopsided 12-5 court.

They are further signs that the Fifth Circuit took precisely the message from this past U.S. Supreme Court term that I previously described: “Disregard precedent where you think we might do so.” “Try out previously fringe ideas.” “Give us more cases.” In short: “Do what you want.”¹

The rulings come as the presidential race continues full steam ahead — with Vice President Kamala Harris holding interviews this weekend with potential running mates for her presidential run. They also come as Congress continues to show ever more awareness that it must respond to out-of-control courts — both to rein them in but also to show the public (and voters) that change is possible.

The Fifth Circuit is doing conservatives no favors in this moment — showing, even over the summer while the U.S. Supreme Court is on recess, why attention must remain on the courts and why changes are needed.

Voting rights

In one case, the Fifth Circuit watered down the Voting Rights Act even further than it already has been by the Roberts court. To do so, the appeals court overruled its own precedent, limiting when people can bring vote dilution claims under Section 2 of the Voting Rights Act.

The question before the Fifth Circuit was whether coalition claims can be brought — which the court held decades ago were allowed and which all appeals courts save one have said are allowed under Section 2.

But, it’s 2024, and Judge Edith Jones — a Reagan appointee who has been sitting on the court for 39 years — wrote the court’s 12-6 opinion overturning its own precedent: “[W]e conclude that coalition claims do not comport with Section 2’s statutory language or with Supreme Court cases interpreting Section 2.”

The day was a long time coming for Jones, who wrote for a five-judge minority in 1993 to urge that “the en banc court should lay to rest the minority coalition theory of vote dilution claims.”

This week, she did.

In reversing the court’s precedent, Jones concluded, “This court will not remain in the forefront of authorizing litigation, not compelled by law or the Supreme Court, whose principal effects are to (a) supplant legislative redistricting by elected representatives with judicial fiat; (b) encourage divisively counting citizens by race and ethnicity; and (c) displace the fundamental principle of democratic rule by the majority with balkanized interests.”

Jones did reach her conclusion without opposition. It was another five-judge minority that laid out — at great length — the problems with Jones’s ruling for the court.

Asserting that the court’s decision required an “atextual and ahistorical conclusion to overturn our own en banc precedent,” Judge Dana Douglas, a Biden appointee, wrote in dissent for the court’s five Democratic appointees, “I begin today by providing what the majority does not: context.”

Douglas put it directly: “Texas has historically discriminated against both Black and Latino voters. And Galveston County is, by all accounts, the embodiment of the conditions which led to § 2’s adoption.”

The facts are that Galveston County — in which the “citizen voting-age population of the county is 58 percent white, 22.5 percent Hispanic, and 12.5 percent black” — altered its district map for its county commissioners to eliminate the one majority-minority district, which also elected the one Democratic commissioner— a Black man.

Lawsuits were filed, which included Section 2 vote dilution allegations, and the district court agreed.

This past week, however, the Fifth Circuit held that “coalition claims” are not allowed — meaning that the majority-minority district does not matter and cannot form the basis of a vote dilution claim if it is made up of multiple minority groups.

In many areas, that would all but eliminate the ability to bring a federal vote dilution claim. And that bar on coalition claims is now the law in Louisiana, Mississippi, and Texas.

First, Douglas noted the limits of the rule overturned this week. Under coalition claims, she wrote, “Plaintiffs must still prove ‘that the minorities so identified actually vote together and are impeded in their ability to elect their own candidates by all of the circumstances, including especially the bloc voting of a white majority that usually defeats the candidate of the minority.’”

After detailing the state and county’s history of racial discrimination — particularly in voting — Douglas looked at the current case and the district court’s conclusion that, as she wrote, “Galveston County’s redistricting process amounted to ‘a clear violation of § 2.’”

She then concluded her consideration of the context, writing, “I agree. And for the last several decades, so did our precedent. But today, the majority discards that well-established authority.”

Of the merits, she wrote, “[T]his case is a simple one, not only because traditional methods of statutory interpretation compel only one outcome, but critically because Appellants fail to carry their burden of persuasion as to why this court should overturn its precedent.” Dryly and starkly, she added, “Luckily for Appellants, the majority relieves them of this burden.“

Douglas, writing for the public and the future, given the court’s current numbers, stated that Jones’s opinion was “blatantly incorrect” about the court’s past precedents. “Contrary to the majority’s contention, today, this court has overturned four decades of en banc precedent without any consideration of whether such a diversion from stare decisis is appropriate,” she wrote.

Judge Catharina Haynes, a George W. Bush appointee, was the sole Republican to dissent. Even she, however, did not join Douglas’s dissent — instead penning a one-paragraph dissent asserting that she would not have overturned the court’s past ruling.

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Immigration control

In the other decision, Judge Don Willett, a Trump appointee, wrote for nine judges in an 11-7 decision allowing Texas to maintain its floating barrier — which includes blades between the buoys — in the Rio Grande to discourage noncitizens from trying to cross the river into America.

This is not a full-on decision cutting down federal authority over immigration, but it is continued support from the appeals court to Texas’s challenges to federal primacy in the field — with one judge willing to go even further than Willett did.

Ultimately, for Willett, the decision came down to how “navigable waters” is defined under the Rivers and Harbors Appropriation Act of 1899, which the Justice Department asserted Texas was violating by attempting to set up the barrier.

Specifically, Willett wrote, “Can the United States likely prove that the barrier is located within a navigable stretch of the Rio Grande?”

After Abbott authorized the construction of the barrier, which is connected to the riverbed floor by concrete blocks, the U.S. sued, claiming “that Texas violated § 10 of the RHA by (1) obstructing the navigable capacity of the Rio Grande without affirmative congressional authorization and (2) building the barrier without approval from the U.S. Army Corps of Engineers (Corps).”

A district court granted the injunction sought by the U.S., a the Fifth Circuit granted one of its “administrative stays” blocking the injunction — and allowing the barrier — but a three-judge panel upheld the injunction — prompting the full court to agree to hear the appeal and issue another stay allowing the barrier in the meantime.

Argument was heard in May, and the court issued its decision this past week.

In short, the Fifth Circuit, via Willett, defines down “navigable waters” to allow the barrier — including a conclusion that navigation required under the law is “the subset” of travel on water “that uses the river as a highway.”

Ultimately, Willett concluded for the court that “the United States’s argument for historical navigability teeters on only inconsistent and exceptional accounts of past use along this stretch of the Rio Grande” and is unlikely to succeed in showing that “the barrier sits in a portion of the river that was historically navigable in its natural condition.” With that limit, however, Willett then added that “[b]ank-to-bank ferry traffic does not supply the necessary evidence that the stretch of the river can sustain trade or travel along its length.“

This additional restriction led Chief Judge Priscilla Richman, a George W. Bush appointee who otherwise agreed with Willett’s conclusions, not to join his opinion even though she “largely” agreed with it. She wrote a brief, three-page concurrence to that end.

Judge Dana Douglas, again, led the Democratic appointees with the lead dissent. This time, one Republican appointee — Judge Leslie Southwick — joined her dissent, as did Judge Carolyn King, a senior judge (and Carter appointee) who sat on the three-judge panel.

On behalf of the seven, she wrote that “the historical evidence provided here sufficiently encompasses the stretch of the river at issue. Moreover, even limited to a segment-by-segment approach, the evidence of ferry usage and the specific acts of Congress regulating this precise location are sufficient to withstand clear error review at the preliminary injunction stage.“

In addition to Douglas’s dissent, Judge Stephen Higginson, an Obama appointee, wrote a dissent — also joined by all of the dissenters — “only to underscore the legal error the majority commits in announcing its new requirement for river navigability.”

Of the “directionality requirement for navigability,” Higginson wrote, the majority has created “a new legal test that is ahistorical, unworkable, and contrary to the federal obligation to guarantee that the waters of the United States remain obstruction-free.”

Finally, and as is a regular occurrence on the Fifth Circuit, there was one judge who would go further even than that majority did.

And, as it was here, that judge is often Judge James Ho. This time, Ho took up Texas’s cause that it is responding to an “invasion” under Article I, Section 10, of the Constitution, which allows for states to “engage in war” when “actually invaded, or in such imminent danger as will not admit of delay.”

For Ho, this has stark effect. “Texas’s invocation of Article I, section 10 presents a nonjusticiable political question,” he wrote, which, he explained, should then mean that the federal courts lack jurisdiction even to hear the United States’s case.

In other words, there is a federal appeals court judge with lifetime tenure who says that, if a state says they are being invaded, it can then go to war with the invader — and federal courts can’t hear cases challenging the state’s claim.

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Jurisdiction stripping

On August 1, more than one-third of the Senate — and a healthy majority of the Democrats in the Senate — introduced the No Kings Act aimed at countering the U.S. Supreme Court’s Trump v. U.S. decision holding that former presidents maintain criminal immunity for life for most official acts carried out while in office and all acts within their “core” function.

Led by Senate Majority Leader Chuck Schumer, the bill asserts that “current and former presidents and vice presidents “shall not be entitled to any form of immunity (whether absolute, presumptive, or otherwise) from criminal prosecution for alleged violations of the criminal laws of the United States unless specified by Congress.”

This is distinct from the constitutional amendment — the language of which we are yet to see — that was backed earlier this week by President Joe Biden and Vice President Kamala Harris.

The Schumer-backed bill, in addition to establishing the applicability of criminal laws to presidents, blocks the bill from Supreme Court review, limiting appellate review to the U.S. Court of Appeals for the D.C. Circuit.

Further still, the bill also would block Supreme Court review of such prosecutions where the individual being prosecuted is challenging the authority of a lower court to proceed with such a prosecution due to an immunity claim.

This — obviously — is not passing this Congress.

It also would certainly face pushback from the court it is attempting to rein in.

And yet, it is important for the reason Biden’s proposals are important in two key ways: They remind voters that change is possible, and they remind the judicial branch that there are other branches with their own constitutional roles. And, when challenged by an overreaching branch, they can act in defense of their own branch.

1. This paragraph was added after initial publication, with the final update at 9:00 p.m.