The Court of Appeals for the Fifth Circuit (CA5) has recently become known as the place “where law goes to die,” with a host of Trump–appointed judges and other highly–partisan conservatives wreaking havoc on the law. This is evident in the numerous decisions issued by the CA5 in the past several months alone, which have caused chaos, confusion, and even outrage from all sides of the political and legal spectrum. The court serves Texas, Louisiana, and Mississippi.
On Tuesday, writing for Vox, legal expert Ian Millhiser noted that “The Fifth Circuit has, in recent months, declared an entire federal agency unconstitutional and stripped another of its authority to enforce federal laws protecting investors from fraud. It permitted Texas Republicans to effectively seize control of content moderation at social media sites like Twitter, Facebook, and YouTube. Less than a year ago, the Fifth Circuit forced the Navy to deploy sailors who defied an order to take the Covid vaccine, despite the Navy’s warning that a sick service member could sideline an entire vessel or force the military to conduct a dangerous mission to extract a Navy SEAL with COVID.”
Millheiser even pointed out how Trump-appointed Supreme Court Justice Brett Kavanaugh has even weighed in on the decision about the Navy, noting that the CA5’s approach wrongly “inserted the courts into the Navy’s chain of command, overriding military commanders’ professional military judgments.”
He didn’t stop there, offering a deeper history of what many legal experts feel is a highly partisan and rogue court. and indeed, “where law goes to die.”
“And this is just a small sample of the decisions the Fifth Circuit has handed down in 2022. Go back just a little further, and you’ll find things like a decision endangering the First Amendment right to protest, or another that seized control over much of the United States’ diplomatic relations with the nation of Mexico. In 2019, seven Fifth Circuit judges joined an opinion that, had it been embraced by the Supreme Court, could have triggered a global economic depression unlike any since the 1930s. Its judges embrace embarrassing legal theories, and flirt with long discredited ideas — such as the since-overruled 1918 Supreme Court decision declaring federal child labor laws unconstitutional. They abuse litigants and even each other. During a 2011 oral argument, the Court’s then-chief judge, Edith Jones, told one of her few left-leaning colleagues to ‘shut up.’“
It is clear to many that the CA5 has become a lawless court, one that is no longer concerned with upholding the law or protecting the rights of citizens. Instead, it is a court that is increasingly willing to bend and break the law in order to serve its own partisan interests. This is a troubling development, and one that should be of great concern to all who value the rule of law. We should not have a court becoming known as “where law goes to die.”
The CA5’s decisions have already had serious consequences for ordinary Americans, and there is no sign that the court will be reined in any time soon. This means that citizens must remain vigilant and be prepared to challenge the CA5’s decisions when they go too far. It also means that Congress must step in to ensure that the CA5 is held accountable when it fails to uphold the law.
If the CA5 is allowed to continue unfettered on its current path, it could have far–reaching and damaging implications for our legal system and our democracy.