The appeals court that partly upheld limits on the Biden administration’s communications with social media companies has a reputation for issuing decisions too conservative for the Supreme Court, which is itself tilted to the right by a six-justice supermajority of Republican appointees.
Of the appeals court’s 17 active judges, only five were appointed by Democratic presidents. Six members of the court were appointed by President Donald J. Trump.
The court, the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, hears appeals from federal trial courts in Louisiana, Mississippi and Texas. Those forums often attract ambitious lawsuits from conservative litigants correctly anticipating a favorable reception, and rulings from trial judges in those states are often affirmed by the Fifth Circuit.
But when those cases reach the Supreme Court, they sometimes fizzle out. An attack on the constitutionality of the Consumer Financial Protection Bureau, endorsed by three Trump appointees on the Fifth Circuit, did not seem to fare well before the justices when it was argued in October. Another, in which the Fifth Circuit struck down a federal law barring domestic abusers from carrying guns, was also met with skepticism.
Other rulings from the Fifth Circuit, on issues like immigration, abortion pills and so-called ghost guns, have also met with at least tentative disapproval from the Supreme Court, suggesting that the appeals court is out of step with the justices.
At a news briefing in September, Irv Gornstein, the executive director of Georgetown’s Supreme Court Institute, said the Fifth Circuit had staked out positions that “at least some of the center bloc of conservatives aren’t going to be able to stomach.”
He added that some of the rulings by the Fifth Circuit were “delivered from Crazy Town” and that “it would be shocking if at least some of those decisions are not reversed.”
