March 23 was not a good day for the U.S. Court of Appeals for the Fifth Circuit.
The U.S. Supreme Court reversed not just one, but two, Fifth Circuit opinions that day.
In Davis v. United States, the high court rebuked the Fifth Circuit’s refusal to examine factual arguments in a drug trial for “plain error” review. “Put simply,” the unsigned per curiam decision stated, “there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.”
In the second case titled Guerrero-Lasprilla v. Barr, the Fifth Circuit refused to examine another set of lower court facts, this time in an immigration case. “The Fifth Circuit erred in holding that it ‘lack[ed] jurisdiction’ to consider the petitioners’ claims of due diligence,” the court stated.
Those are not the only times the Supreme Court struck down Fifth Circuit decisions this past term. The Supreme Court reversed six out of the seven Fifth Circuit cases the justices took up.
That’s an 86 per cent reversal rate, close to that of the frequently rebuked Ninth Circuit, which the Supreme Court overturned 90 per cent of the time in the term ended last month.
Not a big deal, says Baker Botts partner Scott Keller, a former Texas solicitor general who has argued 11 cases before the Supreme Court. Reversal rates fluctuate.
“I don’t think the Fifth Circuit has a history of higher reversal rates compared to the Supreme Court’s overall reversal rate,” Keller said, “This Term’s reversal rate is probably just a product of the small number of data points: If just one of the Fifth Circuit’s reversals this Term had been an affirmance instead, then the Fifth Circuit’s reversal rate would’ve been about equal to the overall reversal rate.”
True, but it seems notable that this high number of reversals comes as the conservative Fifth Circuit tacks further to the right, with six judges appointed by President Donald Trump among 17 active judges. With that trend underway, the Fifth might seem more likely to be simpatico with the Supreme Court, which is tilting in the same direction with Trump appointees Neil Gorsuch and Brett Kavanaugh.
“I don’t think CA5’s reversal rate is much different from the other circuits, but my sense is that it’s the only circuit that gets reversed by a conservative Supreme Court often for being too conservative,” said Jason Steed, counsel at Kilpatrick Townsend in Dallas whose Twitter handle is @5thCircAppeals.
But there is also a lingering undercurrent between the two courts, in part because the Fifth Circuit at times circumvents or ignores the precedents laid down by the Supreme Court, especially in criminal procedure matters.
New York Law School emeritus professor Michael Perlin, who has studied the Fifth Circuit’s rulings on criminal procedure over decades, has watched that relationship.
“The Fifth Circuit is very loath to enforce Supreme Court doctrine on issues like ineffectiveness of counsel (Strickland v. Washington), the death penalty and mental illness (Ford v. Wainwright) and the death penalty and intellectual disability (Atkins v. Virginia).” Perlin said in an interview. “The Supreme Court is aware of that.”
A recent example came in the 2018 decision in Ayestas v. Davis, an “ineffective assistance” case in which the justices unanimously ruled that the Fifth Circuit had used the wrong standard in denying a death-row defendant’s request for funding for expert witness testimony. Justice Samuel Alito Jr., who is the circuit justice overseeing the Fifth Circuit, and does not often side with defendants, wrote the opinion. He wrote that the Fifth had not heeded Trevino v. Thaler, a 2013 precedent.
In Mata v. Lynch, a 2015 case, the Supreme Court struck down a Fifth Circuit ruling involving appeals in an immigration case, rejecting a position that only the Fifth Circuit embraced. “What the Fifth Circuit may not do is to wrap such a merits decision in jurisdictional garb so that we cannot address a possible division between that court and every other,” Justice Elena Kagan wrote for an 8-1 majority.
The Fifth’s go-it-alone tendency is on display in other areas of the law as well. Halliburton v. Erica P. John Fund, a securities class action case, went before the Supreme Court twice, and the justices struck down the Fifth Circuit both times, most recently in 2014.
June Medical v. Russo, one of the marquee cases of the Supreme Court term just ended, met a similar double rejection for the Fifth Circuit. In June Medical, the Supreme Court struck down the Fifth Circuit’s decision upholding Louisiana’s statute requiring that doctors who perform abortions have admitting privileges at a nearby hospital. The high court had done the same thing four years earlier when the Fifth Circuit upheld a similar Texas law in 2016 in the Whole Women’s Health v. Hellerstedt decision.
In the Louisiana case, four liberal justices chastised the Fifth Circuit for ignoring lower court fact-finding about the statute. Chief Justice John Roberts Jr. joined the four justices in rejecting the Fifth Circuit, but for a different reason: stare decisis.
Roberts made no mention of the Fifth Circuit in his concurrence, but he was plainly miffed. In his writing, Roberts included a 1L-level tutorial about the importance of following precedent, as if the Fifth Circuit judges and other readers had never heard of the doctrine. “Stare decisis instructs us to treat like cases alike,” Roberts wrote. “The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law.”
Kilpatrick’s Jason Steed commented, “Ignoring clear SCOTUS precedent in June Medical” is an example of “the new Fifth Circuit’s aggressiveness.”
The upcoming term will provide more chances for the Fifth and SCOTUS to interact as friends or foes. The justices have already granted review of appeals to five separate Fifth Circuit decisions in the term that begins in October.
One of them, an arbitration case titled Henry Schein Inc. v. Archer and White Sales Inc., fits the Fifth’s occasional plight of being reviewed twice. The high court struck down the Fifth Circuit in 2019 and agreed to consider whether it should be struck down again in the upcoming term.
Two other cases pose “very important constitutional issues,” says David Coale, partner at Lynn Pinker Hurst & Schwegmann in Dallas.
Collins v. Mnuchin
The other case Coale highlights, set for oral argument November 10, is Texas v. California. Consolidated with California v. Texas, it arises as yet another Fifth Circuit case that has broad ramifications: whether the Affordable Care Act should fall in its entirety, now that one provision – the individual mandate requiring individuals to purchase health coverage – has been zeroed out by Congress and declared unconstitutional by a lower court. The Fifth Circuit agreed that the provision is unconstitutional but sidestepped whether that meant the entire law had to be struck down.
In recent unrelated cases, the Supreme Court has favored the notion of severability – in other words, a part of a statute can be excised without deep-sixing the whole law.
In his latest “Coale Mind” podcast, Coale said the new term may answer not just the issues involved, but also this question: “Is the newly constituted, staunchly conservative Fifth Circuit in sync with the thinking of the conservative Roberts Court? Or has its brand of conservatism moved beyond what the Roberts Court feels to be the best way of interpreting the nation’s laws?”