December 11, 2023

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Trump’s legacy on the judiciary isn’t just at the Supreme Court


NEW ORLEANS — Months before the Supreme Court overturned Roe v. Wade, the federal appeals court based in this Southern city cleared the way to ban most abortions in Texas. The same court appeared to jump the line to block the White House’s signature coronavirus vaccination mandate and split from other courts to back restrictions on social media companies and constrain President Biden’s immigration powers.

The U.S. Court of Appeals for the 5th Circuit in New Orleans has long leaned conservative. But the arrival of a half-dozen judges picked by President Donald Trump — many of them young, ambitious and outspoken — has put the court at the forefront of resistance to the Biden administration’s assertions of legal authority and to the regulatory power of federal agencies. Their rulings have at times broken with precedent and exposed rifts among the judges, illustrating Trump’s lasting legacy on the powerful set of federal courts that operate one step below the Supreme Court. Even some veteran conservatives on the court have criticized the newcomers for going too far.

Four of the six new judges have worked for Republican politicians in Texas, and some are seen as possible contenders for a future opening on the Supreme Court if a Republican is elected president. With their provocative, colloquial writing styles, the judges are elevating their profiles in far-reaching opinions and public appearances, calling out “cancel culture,” wokeness and sometimes even one another.

“Any school that refuses to stand up against cancel culture — and instead caters to it, and even engages in it — is not a school that is interested in educational diversity. And it’s not a school I want to have anything to do with,” Judge James C. Ho wrote in an article explaining his proposed boycott on hiring Yale Law School students as law clerks because of concerns about free speech on the campuses of elite institutions.

The 5th Circuit reviews appeals from Texas, Mississippi and Louisiana, working from a converted, historic post office building in downtown New Orleans. Besides the expansive geographic area the court covers, it has outsize influence in part because its judges preside over a steady flow of politically potent challenges to the Democratic president filed by aggressive, conservative state attorneys general.

Liberal organizations often challenged Trump’s policies in Northern California courts, where most judges were picked by Democrats. But conservatives who strategically file lawsuits against the Biden administration in Texas have an even clearer advantage: They can almost guarantee initial review by a conservative judge and then appellate review by the 5th Circuit, where the Trump picks are routinely the dominant voice.

“These are the most conservative federal judges in the country having cases specifically brought so that they can decide them at a time when the Supreme Court is reversing some of their decisions, but not all of them. There’s nothing to lose,” said Steve Vladeck, a University of Texas School of Law professor whose analysis of “judge shopping” in Texas was the subject of a recent brief filed in advance of a Supreme Court case.

Alexa Gervasi, a former 5th Circuit law clerk who directs the Georgetown Center for the Constitution at Georgetown Law, said it is no surprise that the court is issuing noteworthy rulings in so many significant cases. “The reason it seems like there’s so much fire coming from the 5th Circuit is that they are getting really divisive cases,” said Gervasi, who also has practiced before the court. “If you send controversial cases to the 5th Circuit, you’re going to get controversial opinions.”

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Trump’s imprint and legacy

Before he left the White House, Trump successfully installed more than 220 federal judges, after years in which then-Senate Majority Leader Mitch McConnell (R-Ky.) stalled nominees put forward by President Barack Obama.

Of the 17 full-time spots on the 5th Circuit bench, 12 are held by judges nominated by Republican presidents and four by judges picked by Democratic presidents. One seat remains unfilled by Biden. The appeals courts almost always hear cases in three-judge panels drawn mainly from the court’s full-time judges, making the odds of having more than one Democratic pick on any panel unlikely. Only the St. Louis-based 8th Circuit has a higher percentage of judges nominated by Republican presidents, according to statistics compiled by Russell Wheeler at the Brookings Institution.

But the combination on the 5th Circuit of big personalities and aspirations — and the large volume of highly charged cases — makes the New Orleans bench a standout.

“Everyone wants to have their say. I don’t think that’s just posturing for the Supreme Court,” said Gervasi, noting the number of judges writing separate dissents and concurring opinions.

Four of the Trump-nominated judges — Ho, Don R. Willett, Stuart Kyle Duncan and Andrew S. Oldham — previously worked in the Texas attorney general’s office, pressing for conservative priorities such as religious freedom and abortion restrictions.

Ho succeeded Sen. Ted Cruz (R-Tex.) as solicitor general. Oldham was deputy to Ho’s successor, Jonathan Mitchell, the architect of Texas’s six-week abortion ban, and he was Republican Gov. Greg Abbott’s general counsel when Trump announced Oldham’s nomination in 2018.

Willett, a former Texas Supreme Court justice with a popular but now-abandoned Twitter account, was an adviser to George W. Bush in the Texas governor’s office and the White House and, later, a legal counsel to Abbott during his time as attorney general.

Liberals targeted Duncan’s nomination because of his past representation of clients opposed to same-sex marriage and the rights of transgender high school students, in addition to his defense of a North Carolina voter ID law.

The two other Trump appointees are Kurt D. Engelhardt, a former federal district judge in Louisiana, and Cory T. Wilson, a former Republican state lawmaker and appeals court judge in Mississippi. Wilson’s nomination was opposed by Senate Democrats because of his record on voting rights and his opposition to the Affordable Care Act.

All six judges either declined to be interviewed or did not respond to messages seeking comment.

Just as the Supreme Court’s conservative majority, with a trio of justices picked by Trump, has gravitated away from the restrained, go-slow approach of Chief Justice John G. Roberts Jr., so too has the 5th Circuit issued rulings that depart from precedent or the decisions of other appeals courts. Two of the new judges used to work for members of the Supreme Court’s conservative bloc: Oldham is a former clerk to Justice Samuel A. Alito Jr., who wrote the opinion eliminating the nationwide right to abortion, and Ho, a former clerk to Justice Clarence Thomas.

Aaron Streett, a Houston-based lawyer who practices before the 5th Circuit and was a law clerk to Chief Justice William H. Rehnquist, said the new judges are at the “leading edge of originalist and textualist ideas percolating up in law reviews and conservative public-interest law firms.”

“You’ve got really bright, creative judges who are talented writers and popularizers of these jurisprudential principles,” Streett said, adding that they are willing to take what the Supreme Court has said in the past decade and “apply those decisions to their fullest logical extent.”

Last fall, a trio of Trump judges ruled that the watchdog Consumer Financial Protection Bureau, long a target of Republican lawmakers, is unconstitutionally funded — jeopardizing enforcement actions by the agency, which was created by Congress in response to the 2008 financial crisis. The ruling went beyond an earlier Supreme Court decision, which found the agency’s structure problematic but did not say its funding authority was invalid.

“The Bureau’s perpetual self-directed, double-insulated funding structure goes a significant step further than that enjoyed by the other agencies on offer,” wrote Wilson, joined by Willett and Engelhardt, in a biting opinion that broke with several other appellate courts.

Within days of the 5th Circuit’s decision, defendants in other CFPB enforcement actions asked the court to dismiss claims against them. The Justice Department has asked the Supreme Court to intervene.

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At times, the assertive approach by Ho and others has drawn fire from fellow conservatives of an older generation. Ho announced his planned law-clerk boycott at a Federalist Society meeting last fall, urging others on the federal bench to join him.

Judge Jerry Smith, a 5th Circuit colleague who once employed Ho as a law clerk, rejected the boycott of his alma mater as “regrettable.”

“Instead of boycotting,” Smith wrote in a post on the national online hiring system for law clerks, “I hope to receive even more Yale applications from qualified men and women.”

Smith, an appointee of President Ronald Reagan, separately has accused some of his colleagues of judicial activism, procedural gamesmanship, distortion of facts, and defiance of Supreme Court precedent that is supposed to bind appeals court judges. “By today’s ruling, the Good Ship Fifth Circuit is afire,” he wrote in a remarkable dissent to a ruling against a vaccination requirement imposed by United Airlines on pilots and flight attendants. “We need all hands on deck.”

Streett, the Houston-based lawyer, said he believes that the judges are engaging in “strongly felt conversations about principles,” without vitriol between the newcomers and the veterans. “I’ve seen zero evidence of any ill will or bad blood between any of the judges.”

Two Democratic appointees to the 5th Circuit have created openings on the court in recent months. Judge James Dennis took a reduced caseload, or “senior status,” after the Senate confirmed a Biden nominee, Magistrate Judge Dana M. Douglas, as the 5th Circuit’s first Black female judge. Gregg Costa gave up his prestigious lifetime appointment last summer, at age 49. Costa, who clerked for the conservative Rehnquist on the Supreme Court, has said he was eager to return to litigation. But he also acknowledged the frustration of being outnumbered — especially when the court sits with a full complement of judges.

“I will say it’s not fun when you have to write a dissent when your cases get essentially reversed by the en banc court,” Costa told Bloomberg Law. The former judge said he worries “that courts are becoming increasingly politicized, and there’s a sense — at least outside the courts — that judges are on teams or that people root for certain sides.”

Even Willett has been critical of the harsh tone of some judicial opinions and partisanship. “Our robes are black, not red or blue,” says an essay he co-wrote with Judge Bernice B. Donald, an appointee of President Barack Obama on the 6th Circuit. “… Regrettably, some judges contribute to the noxiousness, penning acidic opinions that fuel a perception of judges as ideological combatants rather than evenhanded arbiters.”

Inside an ornate, wood-paneled courtroom this fall, Oldham and Willett took turns quizzing a Justice Department lawyer about the federal government’s coronavirus vaccination requirement for members of the Texas Army National Guard. The lawsuit was initiated by Abbott, the state’s governor — and the judges’ former boss. Abbott asked the court to block the military’s enforcement of the vaccination order, which his office said is unconstitutional when troops have not been called to federal duty.

“I’m having a hard time understanding this argument,” Oldham told the Justice Department lawyer representing the government, speaking at a fast clip as he held up a pocket-size copy of the Constitution. “We just ignore the founding history?”

“It’s not that the history needs to be ignored or is irrelevant,” attorney Sarah Clark responded. “It’s that there is a limit to how much it can tell us.”

Could Guard members not under federal orders be court-martialed or imprisoned for refusing to get vaccinated, asked Willett, who is known for sporting colorful bow ties.

“That consequence is not on the table,” Clark responded.

“You say no chance, but not because in your view you lack authority?” Willett continued.

The judges are still considering how to resolve the case after Defense Secretary Lloyd Austin rescinded the military’s vaccination requirement in January.

The Trump appointees have routinely questioned the power of regulatory agencies, voicing strong opinions in challenges to the authority of the Securities and Exchange Commission. In December 2021, the 5th Circuit broke with five other appeals courts that had ruled the other way.

Among those in the majority was Oldham, who used his concurring opinion in part to criticize Democratic President Woodrow Wilson. Oldham said the 28th president empowered administrative agencies “to operate in a separate anti-constitutional, and anti-democratic space — free from pesky things like law and an increasingly diverse electorate.”

Costa, who had not yet resigned his seat on the court, objected, emphasizing what he said should be the modest role of appeals court judges: “In sticking to our judicial duty of answering the legal question before us, we take Supreme Court precedent as it is, not as we wish it to be.”

The Supreme Court heard the case in November and could rule at any time on whether the 5th Circuit majority was right.

The half-dozen judges Trump tapped are not always on the same side. In a case testing legal protections for police officers that all parties characterized as tragic because it involved a suicidal man who burned to death, Ho sided with law enforcement. His concurring opinion also touched more broadly on the national debate over policing.

“Some argue the police should not use force, even in cases involving deadly threats — or that we should defund the police altogether,” Ho wrote. “… As judges, we apply our written Constitution, not a woke Constitution.”

Willett dissented, calling out the officers’ use of Tasers on the man, who had soaked himself in gasoline and burst into flames after being Tasered. He noted that the Supreme Court had twice reversed the 5th Circuit on other accountability cases involving prison officials.

“The Court is warning us to tread more carefully when reviewing obviously violative conduct,” Willett wrote.

Of the Trump appointees, Ho is the best known in legal circles for his colorful and at times pugnacious writing style, which he first demonstrated as co-editor of his high school newspaper. He does not shy from expressing his views beyond the law. Even before the 5th Circuit refused to block the Texas ban on abortion starting at six weeks of pregnancy, Ho wrote in 2018 about what he called the “moral tragedy of abortion.”

In a separate case upholding Texas’s ban on an abortion method used to end second-trimester pregnancies, he included commentary not typical of court opinions, warning judges not to blindly follow scientists. They are “susceptible to peer pressure, careerism, ambition and fear of cancel culture, just like the rest of us,” he wrote. “Doctors and scientists deserve enormous respect. We ignore their advice at our peril. But we also follow them blindly at our peril.”

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The 5th Circuit was again out front last fall in blocking the Biden administration’s vaccination-or-testing requirements for large private employers. The court rebuffed the Justice Department’s request to wait to issue its ruling until the completion of a national judicial lottery that consolidated similar lawsuits before a different court.

“Rather than a delicately handled scalpel, the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address,” wrote Engelhardt, who was joined by Duncan and a veteran conservative judge, Edith Jones.

Two months later, the Supreme Court agreed that the administration did not have the power to impose such a sweeping requirement on private employers.

Oldham attracted attention and criticism from some corners in September for his opinion upholding a controversial Texas social media law that bars companies from removing posts based on political ideology.

“We reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” Oldham wrote. The Texas law, he said, “does not chill speech; if anything, it chills censorship.”

Legal experts said Oldham’s opinion, joined by Jones, diverged from court precedent. The ruling also split with a fellow Trump appointee on the 11th Circuit who blocked a similar law in Florida. Tech industry trade groups have asked the Supreme Court to resolve the conflicting opinions.

Josh Blackman, a professor at South Texas College of Law in Houston and close observer of the 5th Circuit, said the Trump appointees are “not going to sit and wait for the percolation that might happen otherwise” when they disagree with past rulings.

“They are more aggressive and willing to follow the law as they see it and let the chips fall where they may,” Blackman said. “They don’t care about being invited to elite parties in Georgetown.”

At least some of the new additions appeared quite comfortable in conservative circles in Washington, however, as they gathered for the Federalist Society’s annual convention at the Mayflower Hotel in November.

Ho, Oldham and Duncan — in addition to Jones — led panels of academics and advocates and mixed with fellow conservatives in the hallways, where lawyers debated Oldham’s social media opinion.

That evening, the conference moved to a crowded hall at Union Station, where guests were joined by all three of Trump’s choices for the high court — Justices Amy Coney Barrett, Neil M. Gorsuch and Brett M. Kavanaugh — and gave Alito a standing ovation.

A few weeks later, Ho was in New Haven, Conn., to address a conservative student group at Yale. He credited the law school for what he called a “course correction” in response to the outcry over cancel culture.

And he suggested he might not have to follow through on his planned boycott of the school’s students as law clerks after all.


A previous version of this article incorrectly said that President Donald Trump set a one-term record for judicial appointments. President Jimmy Carter installed more judges during his four years in the White House. The article has been corrected.