The U.S. Court of Appeals for the 5th Circuit has found itself under increasing scrutiny, with critics labeling it as a conservative anomaly within the judiciary system. Some argue that it is even more right-leaning than the current Supreme Court, which itself has a conservative majority. Allegations including “dismantling democracy” and spearheading a “judicial power grab” have been levelled against it. These perspectives are highlighted in a detailed article series by Brian Fitzpatrick for SCOTUSblog.
Despite these claims, there is skepticism regarding the 5th Circuit being an extreme outlier. Previously perceived as the conservative counterpart to the historically liberal 9th Circuit, the view among many legal professionals suggests that its conservative reputation may not be as deserved or distinctive as some narratives imply. Critics frequently cite its relatively poor win-loss record at the Supreme Court as evidence, but this is argued to be an insufficient metric for characterizing a circuit’s performance. As detailed in previous analyses, the criteria for judgment should rather focus on the number of appeals the circuit resolves, offering a more nuanced picture of judicial efficacy.
A comprehensive review of Supreme Court reversals during the 2024-25 term shows that the 5th Circuit’s performance on cases processed through full oral argument or brief submissions did not stand out negatively. In comparison, the 10th Circuit experienced the highest reversal rates, with the 5th found middling on the metric of unanimous reversals—a significant measure in identifying judicial extremity. This assessment challenges the notion that the 5th Circuit requires a “control-F” macro for automatic reversal, as those familiar with clerking might joke.
This ongoing conversation remaps the narratives surrounding the 5th Circuit, revealing that it was once the least reversed circuit from 1995 to 2015. Although its position shifted upward on the reversal chart over the years, it still holds a more central position among its peers now. The full context for these evaluations can be explored through the article, Is the 5th Circuit too extreme for the Supreme Court yet?