By Andrew Chung
(Reuters) – When three conservative judges of a New Orleans-based U.S. appeals court declared unconstitutional the congressionally approved funding mechanism for the federal consumer financial watchdog agency, they said the country’s history of separation of powers among its branches of the government forced their ruling.
It turns out that these judges — all appointed by Republican former President Donald Trump — misunderstood history, the U.S. Supreme Court ruled May 16 in a 7-2 decision authored by conservative Justice Clarence Thomas, ruling Consumer Financial Protection Bureau was saved from an existential crisis. threat.
It was one of several sweeping 5th U.S. Circuit Court of Appeals decisions the Supreme Court has reviewed during its current term, which began in October and is expected to end in late June.
The Supreme Court, which itself has a 6-3 conservative majority, has yet to rule on most of this term’s high-profile cases coming out of the 5th Circuit, including one on the abortion pill and two on gun rights.
“It speaks to the importance of these cases that they are postponed toward the end,” said Adam Feldman, a legal scholar who tracks court records on his Empirical SCOTUS blog. “If there are polarizing decisions coming out of the 5th Circuit, there’s probably a lot of movement on both sides of the Supreme Court to look at that, and so it’s like a fight for the middle votes.”
The Supreme Court will deliver its next ruling on Thursday and Friday.
The 5th Circuit is one of thirteen federal appeals courts – and perhaps the most conservative of them – that are one step below the Supreme Court. It hears appeals from federal courts in the Republican-led states of Louisiana, Mississippi and Texas.
According to Feldman, cases from the 5th Circuit have represented an increasing share of the Supreme Court’s caseload in recent years. It has heard ten 5th Circuit cases this term, two of which have been resolved so far, including the CFPB reversal. The only lower court to see more cases reviewed by 12 cases is the San Francisco-based 9th Circuit, which covers nine western states, including California and two U.S. territories.
‘A FAVORABLE FORUM’
The fact that such a panoply of cases on hot-button issues is coming out of the 5th Circuit is the result of conservative plaintiffs choosing to bring suit in a court they “consider a favorable forum,” said Adam Unikowsky, a ranking member of Washington. lawyer who has frequently argued before the Supreme Court.
In turn, the 5th Circuit has not been shy about ruling against federal regulations and statutes, including the federal ban on gun ownership by people subject to court-issued domestic violence restraining orders.
“There are a lot of bold lawsuits being filed in the 5th Circuit and bold decisions,” Unikowsky said.
Supreme Court justices expressed reservations about the 5th Circuit’s decisions during arguments in several key cases yet to be decided, including those on gun bans for domestic violence.
Others included the 5th Circuit backing restrictions on access to the abortion pill and siding with two Republican-led states that accused Democratic President Joe Biden’s administration of violating constitutional protections of free speech by joining in urging social media platforms to remove certain posts that federal officials deemed disinformation.
On the other hand, conservative justices expressed sympathy for the 5th Circuit decisions that found the U.S. Securities and Exchange Commission’s internal rulings to be a violation of the constitutional right to a jury trial, and supported a Texas man who challenged federal ban on bump stock. Devices that allow semi-automatic weapons to fire rapidly, much like machine guns.
The Supreme Court overturned several emergency decisions by the 5th Circuit without hearing arguments — halting sales of homemade “ghost gun” kits, allowing U.S. Border Patrol agents to remove fencing installed by Texas officials along the Mexican border were in place, and the lifting of restrictions on the Biden administration. officials in the case of disinformation on social media.
THE MAIN JUSTICE
Some legal experts said the several reversals and rejections indicate the Supreme Court will not simply approve the 5th Circuit’s actions, despite the conservative leanings of both courts. During the 2022-2023 term, the justices heard nine 5th Circuit cases, affirming that court’s decisions only twice.
This dynamic may be partly due to conservative Chief Justice John Roberts, who, according to Feldman, does not want the public to view the Supreme Court as one that predictably rules in favor of conservatives.
In a May Reuters/Ipsos poll, 74% of U.S. registered Republican voters gave a favorable opinion of the Supreme Court, compared with 21% of Democrats.
“I think (Roberts) is pushing to let some of these diverse coalitions (of judges) rule narrowly. And in doing that, I don’t think that’s necessarily great news for some of these aggressive decisions from the 5th Circuit,” Feldman said.
(Reporting by Andrew Chung in New York; Editing by Will Dunham)
