How Much More Radical Could the Supreme Court Become? Look to the Fifth Circuit.

[In It to Win It]

Mother Jones

Imagine Obamacare is dead and millions of Americans have lost health coverage. Abortion is illegal nationwide, pills to end pregnancies are off the market, and doctors wait until the mother’s death is imminent before attempting lifesaving care. Domestic abusers freely carry guns and government attempts to stop untraceable homemade semiautomatic rifles have been quashed, rendering gun licenses and background checks useless. Environmental regulations founder as climate change worsens. With the sidelining of the Securities and Exchange Commission (SEC) and the Consumer Financial Protection Bureau, Wall Street has returned to its greediest days, making bets that threaten economic stability and preying on consumers with predatory loans and hidden fees. Officials are barred from even asking social media platforms to stem disinformation or calls to violence. Police, unrestrained by federal immigration law, round up, detain, and deport suspected immigrants. Washington can no longer fulfill treaty obligations as states erect barriers along US borders, causing international chaos. And organizing a protest against any of the above may result in you being sued successfully, making free speech an expensive proposition.

These are not mere hypotheticals. The 5th Circuit Court of Appeals—transformed by appointees of former President Donald Trump—has issued decisions greenlighting every one of these eventualities. While some were put on ice by the Supreme Court, others remain in effect in Texas, Louisiana, and Mississippi, the three states the circuit covers. In those states, women have no right to end pregnancies that threaten their health, the enforcement powers of dozens of federal agencies are in doubt, and protest organizers are vulnerable to legal retribution. Other 5th Circuit decisions, from a ruling hamstringing the SEC and similar agencies to one legalizing bump stocks—the device that enabled a lone shooter in Las Vegas to kill 60 people and injure more than 500 in just 10 minutes—are now the law of the land. This is neither the outer bounds of what this radical court will do, nor the end of its impact on all Americans. It is the beginning.

The US Supreme Court oversees 13 judicial circuits, each with an appeals court that hears federal cases arising within its jurisdiction. Every term, the high court agrees to review only a small number of appeals from the circuits, which leaves those appeals courts with final say on most matters. The 5th Circuit has been a right-leaning enclave for decades, filled with judges from the Republican strongholds it oversees. But after Trump placed six new judges on the 17-member court, the relatively staid conservatism of Reagan and Bush jurists gave way to the slash-and-burn tactics of the MAGA movement. On their watch, the court’s decisions, substantive and procedural, have defied judicial precedents and norms while conforming to a familiar far-right agenda of neutering Democratic policies, gutting abortion rights, and undermining the authority of federal agencies.

“There is a new breed of Republican-­appointed judge,” says Stephen Vladeck, a Georgetown Law professor who has followed the 5th Circuit closely. “Much like the divide between Trump Republicans and Bush Republicans politically, there’s a divide between Trump Republicans and Bush Republicans judicially. And what the 5th Circuit has, more so than any other court in the country, is a critical mass of Trump judges.”

Their goal is to move the law far to the right.