Is the Fifth Circuit Becoming the New Ninth?

As the Supreme Court’s docket is shrinking, it is considering an increasing number U.S. Court of Appeals for the Fifth Circuit, and the Fifth Circuit’s decisions do not appear to be faring well. This invites comparisons to the Ninth Circuit, which was notorious for issuing decisions out of step with the current Court. The difference, of course, is that the Ninth Circuit was to the Left of the Supreme Court, whereas the Fifth Circuit appears to be to the Court’s Right. (I have also blogged extensively on whether the Sixth Circuit became the “new Ninth,” at least for a time.)

Over at EmpiricalSCOTUS (the place to go for Supreme Court statistics, especially now that SCOTUSBlog has stopped compiling its StatPack), Adam Feldman has a post analyzing how the Supreme Court has been handling decisions from the Fifth.  It begins:

There are several things that are true about the Fifth Circuit. This includes the six cases from the Fifth Circuit that are already granted for argument before the Supreme Court this term, the most from any circuit so far.  It also includes the six judges that former President Trump appointed to the Circuit.  Then there is the speculative. Some argue that the Fifth Circuit is the most conservative circuit in the United States.  Others see it as a stabilizing jurisprudential force.  What has led to this shifting and increasingly important caseload that the Supreme Court has taken a greater interest in? Much likely has to do with a combination of the judges on the circuit and the cases argued there.

Even with critiques about the number of judges Trump appointed to the Fifth Circuit, the circuit’s decisions have not fared as well as some have speculated they would when reviewed by the Supreme Court in recent terms. In fact, between the 2019 and 2022 terms, decisions from the Fifth Circuit have been reversed more than twice as frequently as they have been affirmed (15 to seven on cases with clear outcomes).  The number of cases and the percentage of the Court’s docket taken from the Fifth Circuit has clearly risen in recent terms though.

The post also looks at the large number of cases the Court has taken from the Fifth Circuit for this term (and do not forget, others may be coming).

As opposed to previous Supreme Court terms where the justices have taken up few decisions from the Fifth Circuit for review and have often overturned them, the Court has granted more cases from the Fifth Circuit so this term than from any other circuit and will very possibly affirm a majority of those decisions.

The Fifth Circuit decisions in four of the six cases are in a clearly conservative direction which accords with the Supreme Court’s apparent preference for conservative constitutional jurisprudence. The number of Republican appointed judges deciding these opinions below also correlates with the plausibility of a higher percentage of affirmed Fifth Circuit decisions than in the past.

These factors are not likely to be limited to this term. As long as the Fifth Circuit is made up of judges who share many of the preferences held by the Supreme Court Justices and decides cases with salient topics as perceived by the Supreme Court, we may see a similar pattern for years to come.

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