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5th Circuit becomes ‘proving ground’ for aggressive arguments by conservatives

By Debra Cassens Weiss

September 4, 2024, 8:59 am CDT

The 5th U.S. Circuit Court of Appeals at New Orleans has become “a proving ground for some of the most aggressive conservative arguments in American law,” according to the New York Times.

When the U.S. Supreme Court overturned the right to abortion in June 2022, for example, the 5th Circuit had teed the case up for Supreme Court review, the New York Times reported last week.

In the term beginning this fall, the Supreme Court has agreed to hear five 5th Circuit cases, including a decision challenging the regulation of untraceable “ghost guns” that are made with kits.

The 5th Circuit’s decisions have been “so audacious” that the Supreme Court overruled the appeals court seven times last term, according to the article.

Overturned decisions would have curbed access to the abortion drug mifepristone, would have allowed gun possession by domestic abusers, and would have allowed states to sue over U.S. social media pressure.

Six of the 5th Circuit’s 17 judges are appointees of former President Donald Trump, who appointed 54 appeals court nominees, the most of any president since former President Jimmy Carter, the article reports.

According to a article in the Texas Tribune, the 5th Circuit’s adoption of conservative positions, even when overturned, helps shift the debate to the right.

Decisions by the 5th Circuit “have the effect of taking legal theories that were off the wall and putting them on the wall,” said Steve Vladeck, a professor at the Georgetown University Law Center, in an interview with the Texas Tribune.

Even when conservative decisions don’t prevail, “the effect is to make these cases of national import and give credibility to those arguments,” Vladeck said.

Akhil Reed Amar, a professor at Yale Law School, told the New York Times that the 5th Circuit’s conservative opinions could stem partly from appellate judges jockeying for a nomination to the Supreme Court.

“If you’re MAGA and you think Donald Trump is going to win the election, you can be in the right lane or hard-right lane,” Amar said. “The hard-right lane is the better lane to be in if you want to get yourself nominated.”