The John Minor Wisdom U.S. Courthouse in New Orleans.
Bobak Ha’Eri/Wikimedia Commons
With the help of Senate Republicans, Donald Trump spent the first three years of his presidency remaking the federal judiciary in his own image. The president has appointed 133 district court judges, 50 appeals court judges, and two Supreme Court justices—meaning about one-fifth of the nation’s federal trial judges, and one-fourth of its federal appellate judges, are Trump appointees. These jurists are leading a conservative revolution that will upend decades of precedent and enshrine reactionary policies into the law. The transformation has only just begun. But for a glimpse of where the judiciary is heading if Trump wins a second term, Americans can look to the 5th U.S. Circuit Court of Appeals. A traditionally conservative bench, the court has been newly reshaped by Trump—and quickly got to work translating right-wing priorities into legal doctrine that will govern generations.
The 5th Circuit’s descent into lawlessness did not happen by accident. Senate Republicans would not let President Barack Obama fill several seats on the court, allowing Trump to reshape it after taking office. He appointed five of the court’s seventeen active judges, who immediately allied with the court’s existing far-right bloc, which includes extremists like Judges Jerry Smith and Edith Jones (appointed by Ronald Reagan) and Jennifer Walker Elrod (appointed by George W. Bush). There are now 11 GOP nominees on the court and just five Democratic nominees. (There’s also one vacancy, because some Republican senators deem Trump’s choice for the seat insufficiently militant.)
Trump didn’t flip the court—it already had a majority of GOP appointees—but he neutralized the influence of moderate conservatives. Judge Catharina Haynes, for instance, was appointed by George W. Bush but sat near the ideological center of the court. A trio of Reagan appointees—Judges E. Grady Jolly, Patrick Higginbotham, and W. Eugene Davis—leaned right but supported judicial restraint and adherence to precedent. Trump’s five appointees joined the axis of extremists like Smith, Jones, and Elrod in 2018. This year, we witnessed the results.
Like all federal appeals courts, the 5th Circuit first hears cases as a three-judge panel whose members are randomly selected; a majority of the court can then choose to rehear the case “en banc,” with every active judge sitting. Today, extremists are more likely to constitute a majority on three-judge panels, and they have an insurmountable majority when the court sits en banc.
In 2019, the conservative majority went on a rampage. An appalling December ruling provides a good example of the 5th Circuit’s cruelty. The court granted immunity from civil suit to prison guards who locked an inmate in two filthy cells for six days. These cells, including the floor and the faucet, were covered in “massive amounts” of feces. The inmate, who was completely naked, was forced to sleep in feces and could not eat or drink because excrement contaminated everything. He sued the guards, who laughed and taunted him as he suffered, for subjecting him to cruel and unusual punishment in violation of the Eighth Amendment.
The 5th Circuit granted the guards immunity. In Smith’s opinion, the court held that an inmate’s right not to be locked in a feces-covered cell for six days was not “clearly established,” so the guards could not have known they were violating the Constitution. Smith added that, while future guards must avoid this precise form of torture, “we do not suggest” that “prison officials cannot require inmates to sleep naked on the floor. There can be any number of perfectly valid reasons for doing so.”
To be fair, the 5th Circuit issued a few decent decisions that did not shield law enforcement officers from lawsuits brought by victims who alleged unconstitutional conduct. (This shield is called “qualified immunity.”) But these modest decisions—which merely allowed victims to make their case to a jury rather than nixing their lawsuits altogether—provoked the ire of the court’s far-right flank.
James Ho, a Trump judge whose opinions resemble Rush Limbaugh’s most incoherent rants, accused the majority of enabling mass shootings when it withheld qualified immunity from cops who apparently shot an innocent man to death. (Three bomb-throwing colleagues joined his opinion.) The facts were horrific: Officers shot the victim from 100 yards away because he was holding a toy cap gun and allegedly looked like a suspect in pursuit (probably because they were both black.) When the victim didn’t die immediately, the officers electrocuted him with a stun gun until he expired. According to Ho, the victim’s family should not be allowed to sue the officers. In fact, Ho has suggested—joined by two colleagues—that no one should be able to sue officers for constitutional violations when they engage in illegal violence.
It should not be surprising that this court cut back on protections against double jeopardy, permitting prosecutors to retry a defendant on an issue of fact that a jury has already decided in his favor. Or that the court curbed Americans’ right to protest in a decision involving DeRay Mckesson, a Black Lives Matter activist. During one demonstration that Mckesson helped lead against police brutality, a protester threw a hard object at an officer that hit him. The officer then sued Mckesson, even though he’d done nothing to incite violence. In shocking ruling, the 5th Circuit approved the lawsuit, holding Mckesson was liable for any violence committed by any protester at his demonstration. This decision is a frontal attack on the First Amendment, subjecting activists to crippling damages by making them liable for the conduct of people they can’t actually control. It radically alters free speech law, suppressing dissent and threatening to bankrupt civil rights groups.
The 5th Circuit is also finding new and creative ways to trample LGBTQ rights. The court held that the Eighth Amendment does not require prisons to provide sex reassignment surgery to transgender inmates, even those who threaten suicide. Ho’s opinion for the court willfully misgendered the trans plaintiff. The court also held that Title VII of the Civil Rights Act does not bar discrimination on the basis of sexual orientation or gender identity. In a long-winded concurrence to his own majority opinion, Ho then lobbied SCOTUS to rule against LGBTQ equality, writing that a decision for LGBTQ rights would delegitimize the court.
There was one bright spot in the 5th Circuit’s jurisprudence in 2019, but it is an aberration that may soon be undone. A three-judge panel refused to halt a district court’s decision invalidating Mississippi’s Senate District 22 as an illicit racial gerrymander under the Voting Rights Act. The panel’s ruling infuriated Judge Edith Brown Clement, an arch-conservative George W. Bush appointee, who complained, in partisan terms, that the case hadn’t come before three Republican judges.
Later, a different panel upheld the district court’s ruling in full. In response, Judge Don Willett, a Trump appointee, suggested that the Voting Rights Act’s bar on the dilution of minority votes is unconstitutional. It appears that Clement and Willett will ultimately win out: In September, the court decided to take the case en banc, a sign that it may uphold racial gerrymandering and perhaps further hobble the Voting Rights Act.
Trump’s judicial nominees are not selected because they are unbiased or nonpartisan or fair-minded. They are chosen largely because of their loyalty to the Federalist Society, a network of conservative attorneys led by Leonard Leo, who advises Trump on judges. Leo has spent decades—and millions in dark money—grooming and vetting lawyers who impose their hard-right views from the bench. He views moderate judges like Haynes as mistakes. The influx of Trump judges, who had to pass an ideological purity test to win Leo’s approval, will not drift to the left.
The Federalist Society’s influence is derived from conservatives’ single-minded focus on overturning Roe v. Wade. This year, the 5th Circuit has gotten Republicans closer than ever to achieving that goal. The court has begun openly flouting Supreme Court precedent preserving the right to choose. They kicked off the year by declining to disturb an outrageous decision by a three-judge panel upholding Louisiana’s unconstitutional abortion law. The Louisiana restriction, which forces abortion providers to get admitting privileges at a nearby hospital, is virtually identical to a Texas statute that the Supreme Court struck down in 2016.
Yet in an opinion by Smith, the panel defied SCOTUS and upheld Louisiana’s law in June Medical Services v. Gee. Then, in January, the court’s conservative judges refused to reconsider Smith’s egregious decision. Their decision so brazenly rejected binding Supreme Court precedent that Chief Justice John Roberts, no friend of reproductive rights, stepped in to keep the measure on hold. (SCOTUS will hear the case in March.) In October, a three-judge panel intervened in a different case challenging a separate set of Louisiana abortion limitations. The panel declared that abortion providers lacked standing to challenge much or all of the state’s abortion regime, a ploy that can insulate anti-abortion laws from judicial review altogether.
Republican appointees to the 5th Circuit make little effort to conceal their disgust with abortion. Ho accused women who terminate their pregnancies of furthering eugenics in a December concurrence. (His slander of these women is not only offensive but factually inaccurate.) Ho also praised the “the millions of Americans who believe in the sanctity of life,” insisting that Roe has no “basis in constitutional text or original meaning.” He even urged courts to hold hearings on “fetal pain,” writing: “If courts grant convicted murderers the right to discovery to mitigate pain from executions, there’s no reason they shouldn’t be even more solicitous of innocent babies.”
The 5th Circuit today is a sneak peek of what more courts will look like once they have been fully captured by judges both Trump-appointed and Trump-aligned. The president has already flipped the 2nd, 3rd, and 11th Circuits, creating a majority of Republican appointees. As the president solidifies his grasp on these courts, we can expect them to issue more extreme decisions that drag the law to the right. Although the Supreme Court is fiercely conservative, the chief justice has stopped it short of going full partisan in occasional high-profile cases. If Trump gets one more Supreme Court appointment, however, SCOTUS may join the 5th Circuit in abandoning any pretense of impartiality and simply embracing the Republican Party platform.
The 5th Circuit is a largely successful experiment for the jurisprudence of Trumpism. And in the hands of the nation’s most radically conservative judges, it has become the court where justice goes to die.
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