Court watchers have been speculating that the US Supreme Court’s conservative supermajority will result in alignments with the most right-leaning lower courts, the Supreme Court is, however, expected to reverse a lower court’s decisions less frequently on balance if that appeals court skews conservative. This provokes an interesting question – what happens if a lower court is more conservative than the Supreme Court?
The US Court of Appeals for the Fifth Circuit has gained notoriety over the past couple of years as potentially the most conservative federal court of appeals in the United States. This trend is based on the fact that 37.5% of the circuit’s 16 active judges were appointed by former President Donald Trump and 75% were appointed by Republican presidents, only second to the Eighth Circuit in this matter, which boasts 91% of its judges appointed by Republican presidents according to these analysts.
To measure conservatism, studies often consider the balance of Democratic and Republican appointed judges as a measure such as this. They also look to Judicial Common Space (JCS), a measure developed by Lee Epstein and collaborators, which provides a more nuanced score through considering aspects like voting behavior of a judge’s appointing president and home state senators. These scores offer an insight although a perfect measure of conservatism doesn’t exist.
Recent cases from the Fifth Circuit demonstrate an unprecedented dominance on the Supreme Court’s docket, with more cases taken from the Fifth Circuit this term than other circuits. This trend might indicate the Supreme Court is actively monitoring the Fifth Circuit’s decisions more closely than before, although it’s too early to decipher the exact reasons. Speculation suggests the Supreme Court might grant more cases from the Fifth Circuit due to its aggressively conservative rulings, and the potential to reverse them.
The current level of attention on the Fifth Circuit and its decisions possibly hints at it being more conservative than the Supreme Court. However, given no major shifts in the ideological makeup of either court over the past year, it can be assumed that the Fifth Circuit’s decisions will be reversed as often as they were in recent terms – more frequently than the average across all circuits. The truth, however, will likely unveil itself through following and analyzing the Court’s upcoming decisions.
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