The Supreme Court can rein in appeals court extremism — or encourage it

Is the Fifth Circuit's lawlessness a bug — or a feature — to the Roberts court?

We’re one week into the new Supreme Court term, and it’s already been made abundantly clear that the increasing extremism of the federal appeals courts is going to play a key role in how our legal system operates — and its continued legitimacy.

On Friday, Justice Sam Alito put a district court’s injunction barring enforcement of the Biden administration’s “ghost gun” rule against two gun manufacturers on hold temporarily after the U.S. Court of Appeals for the Fifth Circuit refused to do so.

That might not seem too out of the ordinary until you learn what came before it. The injunction was issued after a 5-4 Supreme Court ruling in August that put a ruling from the same district court on hold that would have vacated the rule altogether. The Supreme Court’s order keeping the “vacatur” ruling on hold remains in effect throughout any appeals, but the district court decided the injunction was a way around that — and the Fifth Circuit said (for the most part) that that was fine.

This — complicated, unusual procedural moves from courts and parties, in addition to extreme substantive challenges and rulings — is becoming the norm, especially in the Fifth Circuit.

Through rulings that only would have found a home in far-right ideological organizations’ white papers and panels in the past, the appeals courts — most notably the Fifth Circuit, but they are by no means alone — are turning fringe ideas into law at a breakneck pace. The Fifth Circuit, in particular, is also using procedural and “administrative” steps to effect substantive change — and, sometimes, in a way that appears to be aimed at preventing the Supreme Court from stepping in to address extremism.

These rulings and moves from the appeals courts, ultimately can serve one of two roles: an excuse for the conservative supermajority on the high court to continue moving the nation’s legal system further and further right, or opportunities for the Supreme Court to establish itself as a court of law willing to stop extremism.

While a strong high court wanting to assert its independence and fairness would use these moments consistently to stop extremism, that’s not likely what is going to happen in this moment with this Supreme Court.

Instead, the 6-3 conservative high court is more likely to take advantage of the extremism as often as, if not more than, it acts to stop it. This Supreme Court has no real reason to want the appeals courts to hold back from extremism. Occasional pushback from the justices to the most lawless moves from the appeals courts can become a feature, not a bug, of efforts to take the law in this country further and further to the right.

To see why this is so, one only need look to Chief Justice John Roberts. A two-step response to extremism would allow Roberts — and the Supreme Court — to advance his publicly stated concerns for institutional legitimacy while at the same time taking up far-right ideas once a fringe position has gained “legitimacy” from the backing of a few lower courts.

We could currently be watching this happen in the cases over bans on gender-affirming medical care for minors, as I detailed here at Law Dork on Friday in the context of a federal district court decision refusing to block Oklahoma’s ban. Challengers have avoided taking the issue to this Supreme Court thus far, but a case reaching the high court is inevitable — and extremist decisions from two appeals courts upholding states’ bans have, in the course of a few weeks, upended the litigation landscape after two years of unanimity among the federal courts that these bans are likely unconstitutional.

This is not, however, a limited matter.

The substantive extremism I am discussing is perhaps best seen in the challenge to federal approval of mifepristone. The fringe challenge backed by Alliance Defending Freedom’s lawyers relies on arguments that would restrict the U.S. Food and Drug Administration’s authority in an unprecedented way — leading the Biden administration and pharmaceutical industry to take the same side in the case. Although the Fifth Circuit pulled back the most extreme part of U.S. District Judge Matthew Kacsmaryk’s ruling, they agreed with significant parts of the much-criticized ruling. And though the Supreme Court put the effects of the various lower court rulings on hold for now, the Fifth Circuit’s ruling means that the Justice Department has had to ask the high court to take the case and reverse the Fifth Circuit’s decision in order to maintain access to the medication abortion drug on current terms.

The procedural extremism I referenced is perhaps best seen through the “administrative stay” the Fifth Circuit granted to Texas regarding the challenge to its new law establishing a book-ban regime for the state’s public schools and all businesses that sell books to those schools. After a preliminary injunction was issued against the ban — by a Trump appointee, at that — the Fifth Circuit did not rule on the state’s request for a stay of that injunction pending appeal. Instead, it issued an “administrative stay,” leaving the stay pending appeal request to be addressed by the merits panel hearing the appeal — a move that could come in months or not at all. The administrative stay of the injunction both allows the state to begin implementing the law and makes it difficult for the challengers to appeal.

Then there are cases where the lower courts do both — making unusual substantive decisions while also taking questionable administrative steps.

This is most clearly seen in the case brought against the Biden administration, accusing it of turning social-media companies into state actors through coercion or “significant encouragement” regarding certain content moderation decisions. The case led to an extreme district court decision on July 4 and a subsequent Fifth Circuit ruling that upheld several key parts of that decision. When the Justice Department followed that up by going to the Supreme Court seeking a stay, the Fifth Circuit engaged in some of the most unusual procedural maneuvering by a court that I’ve seen — essentially trying to take the case back from the Supreme Court by granting a rehearing of the appeal. As the district court’s injunction against the administration was put on hold during the Fifth Circuit’s rehearing, the Supreme Court stood back, but, when the Fifth Circuit issued a slightly more expansive ruling on Oct. 3, the Justice Department went back to the Supreme Court days later re-upping its request for a stay of the injunction pending its request that the Supreme Court hear the case.

In these and other cases, out of the Fifth Circuit and elsewhere, the Supreme Court will have to decide — in matter after matter — whether it is a court of law or a court of far-right ideological politics.

Choosing to rein in extremism only when convenient, however, could quickly be seen as a cover — a distraction — if the court otherwise uses the lower courts’ extremism to advance a larger project of far-right legal overhaul. And that, in turn, could have long-term consequences for the court’s legitimacy.¹

1. Due to an editing error (by me, to be clear), the final paragraph of this column got cut off when I added the subscribe button and I did not notice before sending out the newsletter. It has been added here, though, as it is substantive and necessary to the conclusion.