Those of us who practice within the boundaries of the Fifth Circuit (Texas, Louisiana and Mississippi) have known for some time that the Fifth Circuit has become the most aggressively conservative appellate court in the country. In fact, when the U.S. Supreme Court overturned Roe v. Wade in 2022, that was an appeal from a Fifth Circuit decision. That decision is now known as Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022). In the coming Supreme Court term, the Supreme Court will hear five more appeals from the Fifth Circuit.

In the last term, the Supreme Court overturned the Fifth Circuit seven times. Six of the Circuit’s 17 judges are Trump appointees. Says Steve Vladeck, a former law professor at University of Texas and now at Georgetown Law, decisions by the 5th Circuit “have the effect of taking legal theories that were off the wall and putting them on the wall.” Or, as I said in one blog post, you know you’re conservative when you are even too conservative for the very conservative Supreme Court.

One observer, Akhil Reed Amar, a law professor at Yale Law School, noted that appellate court justices who want to get promoted to the Supreme Court will often do that by becoming more conservative, not less. That brings to mind one Judge Ho at the Fifth Circuit. In a remarkable turn of events, he actually wrote a concurring opinion to his own majority opinion. See ABA Bar Journal report for more information.