The Fifth Circuit is a godsend for the Supreme Court. It allows them to look more reasonable than they truly are. See also a Slate piece about "course correction" that is filled with rather pathetic examples such Clarence Thomas recusing in one case (but not another case involving 1/6).
I don’t know about that. The Supreme Court still has the final say and its pomp and circumstance, extensive procedures, and lengthy opinions further elevate ~what they do~ so that it would rarely appear as a rubber-stamp.
That said, and as I wrote about regarding the CFPB case, Justice Jackson is certainly making the point that they are not beholden to the Fifth Circuit’s framing of cases (and, implicit in that, its decisions).
I just think it would take a lot for people to see this as *minimizing* the Supreme Court’s role, as opposed to them *empowering* the lower courts to keep going further and further right.
I'm not sure, you may be right. It just seems that if people see that the 5th Circuit's opinion is invariably upheld by SCOTUS...there's no longer any anticipation about a SCOTUS ruling.
They don't strike me as a group that willingly delegates its power.
I don't think they're likely to see the Fifth Circuit invariably upheld by SCOTUS. That's pretty much the point of my piece: The court can try to make itself look "fair" by tossing out a few extreme decisions here and there.
But, that aside, I get your argument; I just think there is enough that ~SCOTUS does~ that it would take a whole lot for it to look the way you're describing it to people who aren't paying constant attention to all of this like us.
I think you are right in your description of the interplay bwetween SCOTUS and the 5th.
You sort of suggest that they are partners in a kind of dance: the aggressive pushing of boundaries by the 5th gives SCOTUS cover for its rightward move. A kind of cooperative game between them.
Steve Vladeck has pointed out that the 5th Circuit fared very poorly at SCOTUS last term, and it seems like the more recent decisions you discuss here are even more radical. That could fit the cooperation theory.
I'd suggest another possibility, a more antagonistic game: the radicalism of the 5th Circuit is intended to bring outside pressure on SCOTUS from its conservative benefactors (and internal pressure on Roberts and Kavanaugh from their more reactionary fellow justices).
Clearly, SCOTUS has shown itself unwilling to call out the 5th for its radicalism, even as it has generally ruled agaisnt the 5th. I think that fits with a model where Roberts/Kavanaugh are cooperating with the 5th or with one where R/K are being bullied by the 5th, Thomas/Alito/Gorsuch, and all the outside conservative organizations and billionaires.
Nothing is new under the sun. The Fifth Circuit with today's SCOTUS is the Ninth Circuit with yesterday's SCOTUS. Fortunately one of the reasons the Court grants cert is conflict among the circuits. Indeed, it happens with such frequency that Chief Justice Burger even advocated for a national appellate court to handle such conflicts. It's being characterized as a potential crisis and a challenge to the Court's legitimacy because this platform views the Court through a Democrat vs Republican political lens. Unfortuantely, such a politics-heavy focus is a disservice to efforts to understand SCOTUS jurisprudence and works to pull the Court further into the political maelstrom.
This is an incomplete critique given that it avoids the entire point of this post, which is *what the Supreme Court does with it* when faced with an outlier circuit. A liberal Ninth Circuit being reversed constantly by a moderately conservative court is not that same situation as a far-right Fifth Circuit being reversed at times — but not others — by a strongly conservative Supreme Court. In fact, the distinction is so stark that it could have been its another version of this post.
Additionally, I would assert that the Fifth Circuit is going further right than the Ninth Circuit went left, including, specifically, with the sort of procedural moves I discuss.
Neither of us will be able to offer a full critique for a few years. Another of your readers posted a Bloomberg article from June pointing out the Fifth Circuit was overturned in 6 of 8 cases last term, which seems relevant to your post. But that's just one term. These cases will work their way through, hopefully without concern for political pressure, as it should be.
Which is what my comment is about. I rather doubt that your readers are surprised to learn that you believe "the Fifth Circuit is going further right than the Ninth Circuit went left." That's a political POV. Evaluating SCOTUS through an ends-based left/right lens is an extremely limiting viewpoint and ultimately fails as either an explanation or predictor of SCOTUS decisions..
We've had this debate many a time before, and I'm not going to spend another day going back and forth with you 20 times on it. But, as always, thanks for reading and for commenting. We disagree, and I think you are wrong to ignore the political reality of many court decisions, but I do appreciate the pushback, which is why I always respond.
Jonathan Adler has noticed the parallels between today's Fifth Circuit and yesterday's Ninth Circuit. He also cites analysis showing the Court has overturned the Fifth Circuit around 2/3 of the time over the past four terms.
I did not realize until last week and this week just how left wing you are. If you think the Fifth Circuit is extremist, you are far out in left field and very, very wrong IMO.
The Fifth Circuit is a godsend for the Supreme Court. It allows them to look more reasonable than they truly are. See also a Slate piece about "course correction" that is filled with rather pathetic examples such Clarence Thomas recusing in one case (but not another case involving 1/6).
I wonder, though. The increasing arrogance and extremism of the lower courts threatens to substantially minimize the role of SCOTUS.
If Scotus is relegated to rubber-stamping lower court rulings, then the focus turns to the lower courts.
Once SCOTUS' role has been so diminished (even with Roberts' strategizing), it will never recover.
I don’t know about that. The Supreme Court still has the final say and its pomp and circumstance, extensive procedures, and lengthy opinions further elevate ~what they do~ so that it would rarely appear as a rubber-stamp.
That said, and as I wrote about regarding the CFPB case, Justice Jackson is certainly making the point that they are not beholden to the Fifth Circuit’s framing of cases (and, implicit in that, its decisions).
I just think it would take a lot for people to see this as *minimizing* the Supreme Court’s role, as opposed to them *empowering* the lower courts to keep going further and further right.
I'm not sure, you may be right. It just seems that if people see that the 5th Circuit's opinion is invariably upheld by SCOTUS...there's no longer any anticipation about a SCOTUS ruling.
They don't strike me as a group that willingly delegates its power.
I guess we'll know soon enough.
I don't think they're likely to see the Fifth Circuit invariably upheld by SCOTUS. That's pretty much the point of my piece: The court can try to make itself look "fair" by tossing out a few extreme decisions here and there.
But, that aside, I get your argument; I just think there is enough that ~SCOTUS does~ that it would take a whole lot for it to look the way you're describing it to people who aren't paying constant attention to all of this like us.
I think you are right in your description of the interplay bwetween SCOTUS and the 5th.
You sort of suggest that they are partners in a kind of dance: the aggressive pushing of boundaries by the 5th gives SCOTUS cover for its rightward move. A kind of cooperative game between them.
Steve Vladeck has pointed out that the 5th Circuit fared very poorly at SCOTUS last term, and it seems like the more recent decisions you discuss here are even more radical. That could fit the cooperation theory.
I'd suggest another possibility, a more antagonistic game: the radicalism of the 5th Circuit is intended to bring outside pressure on SCOTUS from its conservative benefactors (and internal pressure on Roberts and Kavanaugh from their more reactionary fellow justices).
Clearly, SCOTUS has shown itself unwilling to call out the 5th for its radicalism, even as it has generally ruled agaisnt the 5th. I think that fits with a model where Roberts/Kavanaugh are cooperating with the 5th or with one where R/K are being bullied by the 5th, Thomas/Alito/Gorsuch, and all the outside conservative organizations and billionaires.
Nothing is new under the sun. The Fifth Circuit with today's SCOTUS is the Ninth Circuit with yesterday's SCOTUS. Fortunately one of the reasons the Court grants cert is conflict among the circuits. Indeed, it happens with such frequency that Chief Justice Burger even advocated for a national appellate court to handle such conflicts. It's being characterized as a potential crisis and a challenge to the Court's legitimacy because this platform views the Court through a Democrat vs Republican political lens. Unfortuantely, such a politics-heavy focus is a disservice to efforts to understand SCOTUS jurisprudence and works to pull the Court further into the political maelstrom.
This is an incomplete critique given that it avoids the entire point of this post, which is *what the Supreme Court does with it* when faced with an outlier circuit. A liberal Ninth Circuit being reversed constantly by a moderately conservative court is not that same situation as a far-right Fifth Circuit being reversed at times — but not others — by a strongly conservative Supreme Court. In fact, the distinction is so stark that it could have been its another version of this post.
Additionally, I would assert that the Fifth Circuit is going further right than the Ninth Circuit went left, including, specifically, with the sort of procedural moves I discuss.
Neither of us will be able to offer a full critique for a few years. Another of your readers posted a Bloomberg article from June pointing out the Fifth Circuit was overturned in 6 of 8 cases last term, which seems relevant to your post. But that's just one term. These cases will work their way through, hopefully without concern for political pressure, as it should be.
Which is what my comment is about. I rather doubt that your readers are surprised to learn that you believe "the Fifth Circuit is going further right than the Ninth Circuit went left." That's a political POV. Evaluating SCOTUS through an ends-based left/right lens is an extremely limiting viewpoint and ultimately fails as either an explanation or predictor of SCOTUS decisions..
We've had this debate many a time before, and I'm not going to spend another day going back and forth with you 20 times on it. But, as always, thanks for reading and for commenting. We disagree, and I think you are wrong to ignore the political reality of many court decisions, but I do appreciate the pushback, which is why I always respond.
Jonathan Adler has noticed the parallels between today's Fifth Circuit and yesterday's Ninth Circuit. He also cites analysis showing the Court has overturned the Fifth Circuit around 2/3 of the time over the past four terms.
https://reason.com/volokh/2023/10/14/is-the-fifth-circuit-becoming-the-new-ninth/
I did not realize until last week and this week just how left wing you are. If you think the Fifth Circuit is extremist, you are far out in left field and very, very wrong IMO.
BS. The Fifth Circuit IS extremist.
https://news.bloomberglaw.com/us-law-week/conservative-fifth-circuit-is-stumbling-at-us-supreme-court
Facts are a bitch.
Chris Geidner is new so not knowing his beliefs is not surprising.
Lol.