The Fifth Circuit, a federal appeals court, has drawn significant attention for various reasons – with six of its cases already granted for argument before the Supreme Court this term – the highest number from any circuit thus far. Predominantly, the court is comprised of six judges appointed by former President Trump, an aspect which has stirred debates. Some perceive the Fifth Circuit as the country’s most conservative, whilst others view it as a stabilizing jurisprudential force.
Yet, despite criticism about Trump’s considerable influence on the Fifth Circuit, decisions have not always done as well as expected under Supreme Court review. In the period between 2019 and 2022, Fifth Circuit decisions were more frequently reversed than affirmed by the Supreme Court, highlighting an aspect that is increasingly relevant with the growing number of cases from the Fifth Circuit being considered by the Supreme Court.
An intriguing trend has emerged, wherein Fifth Circuit cases have increased in frequency with Trump’s presidency. This was particularly seen post-2020 when all of Trump’s nominees were confirmed. Furthermore, active judges from the Fifth Circuit are predominantly Republican-appointed – outnumbering Democratic appointments 3 to 1.
However, such comparative demographics should not be the singular influence on predictive judicial outcomes, as demonstrated by examining the individual voting patterns of Fifth Circuit judges. The agreement levels between the two levels of judges reveal that, although all of Trump’s judges had more than 50% agreement with the Supreme Court’s decisions, nuances regarding precedent may be missed.
Currently, the Supreme Court is reviewing an unprecedented number of Fifth Circuit decisions, predominantly dealt by Republican-appointed judges. From these trends, we might theorize that the Supreme Court is likely to affirm the decisions from the Fifth Circuit at a higher rate than previous terms. It is important to note though, that legal principles and constitutional interpretations will have an immense impact on the final outcomes of the cases.
Nevertheless, it seems plausible that these dynamics may mark a trend extending beyond just this term. As long as the Fifth Circuit continues to comprise judges with shared preferences by Supreme Court justices and continues to hand down decisions on salient topics, we may anticipate a similar pattern for years to come.
Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. Get in touch with Adam via email at adam@feldmannet.com or follow him on Twitter at @AdamSFeldman.