A rogue court is on the loose in the country. No, not the Supreme Court — not yet, anyway. It’s the United States Court of Appeals for the Fifth Circuit, and it’s out of control.
Based in New Orleans, with jurisdiction that extends to Mississippi and Texas as well as Louisiana, the Fifth Circuit once covered nearly the entire Deep South and became known as the courageous, indispensable court of the civil rights era. But it has been a conservative court for decades. Now, bolstered by six judges appointed by President Donald Trump, the 17-member court has turned radical.
The latest example came last week, when a three-judge Fifth Circuit panel issued a stay of the Biden administration’s requirement that companies employing 100 or more people require their work force to be vaccinated against Covid-19 or to submit to masking and weekly testing. Two of the judges, Kurt Engelhardt and Kyle Duncan, are Trump appointees. The third, Edith Jones, a former chief judge of the circuit appointed by President Ronald Reagan in 1985, used to be considered the court’s most conservative member. But her new colleagues are well on their way to outdoing her.
Judge Engelhardt’s 20-page attack on the Occupational Safety and Health Administration, the federal agency that issued the vaccine order, is an astonishing document.
It opens with the bizarre observation that the agency declared in June 2020 that an emergency order to protect people in the workplace from Covid-19 was “not necessary,” the suggestion being that OSHA had no business changing its mind. One point that goes unmentioned is that there were no vaccines at the time; the first emergency use authorization for one was not approved until Dec. 11 of that year. Now there are vaccines — highly effective ones that millions of misguided Americans refuse to get, allowing the coronavirus to keep circulating and mutating.
Judge Engelhardt’s offhand observation that a virus that has killed some 765,000 Americans is, after all, “non-life-threatening to a vast majority of employees” is, to put it politely, a Fox News perspective on the pandemic that has no place in a judicial opinion reviewing the work of an expert agency.
The panel concluded that OSHA had exceeded its statutory authority and probably its constitutional authority as well. Although noting that the judicial norm is to accord “great deference” toward the agency’s fact-based policy judgments, Judge Engelhardt said that, to the contrary, “this is not a case where any amount of deference would make a bit of difference.”
Its legal analysis aside, the most startling aspect of the panel’s decision was that it was issued at all. By the time the Fifth Circuit ruled on Nov. 12, a procedure was already underway to consolidate the many challenges to the OSHA rule that were piling up in courts around the country and to send them all to one federal appeals court to be chosen by lottery. This is standard federal court practice to deal which what’s known as multidistrict litigation.
In other words, a court less eager to shape the judicial response to the order would simply have waited patiently while this established process played out, as it did on Tuesday when the lottery assigned some three dozen cases to the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati. Although the Biden administration can now ask the Sixth Circuit to lift the Fifth Circuit’s stay, the stay remains in effect, and the panel’s dismissive language about the pandemic’s threat is there for the world to see.
The Fifth Circuit’s aggressive behavior in the vaccine case almost pales in comparison to what the court has done with abortion. In September the court rejected pleas from abortion providers in Texas to put the vigilante law Senate Bill 8 on hold to enable the clinics to litigate their case against it. The clinics’ emergency motion came before the same three judges who later ruled in the OSHA vaccine case.
The panel’s 19-page unsigned opinion in the case, Whole Woman’s Health v. Jackson, analyzed the obstacles the private plaintiffs faced in finding someone to sue over a law that purports to insulate all state officials from responsibility for administering a flagrantly unconstitutional ban on abortion after only six weeks of pregnancy. In rejecting the clinics’ motion, the panel declared primly that “we must respect the limits of our jurisdiction.” The clinics’ claims against a Texas state court judge and court clerk were “specious,” the court said.
The federal government then brought its own suit against Texas on the completely different theory that S.B. 8 was an affront to the sovereign interests of the United States and to the supremacy of federal law. A federal district judge, Robert Pitman, granted the preliminary injunction the federal government sought in a 113-page opinion that meticulously dismantled all of the state’s objections to the court’s jurisdiction.
A different Fifth Circuit three-judge panel, by a vote of 2 to 1, promptly blocked Judge Pitman’s order, explaining in a single sentence of a single paragraph that it was granting the state’s request for the stay “for the reasons stated in Whole Woman’s Health v. Jackson.” How could this be? The “reasons stated” in rejecting the private plaintiffs’ case had nothing to do with the federal government’s suit, as the Solicitor General’s Office told the Supreme Court in its application to vacate the Fifth Circuit’s stay.
“Those reasons do not apply to this very different suit,” the acting solicitor general, Brian Fletcher, explained to the justices. “Sovereign immunity forced the private plaintiffs in Whole Woman’s Health to sue individual state officers, and this court and the Fifth Circuit questioned whether those officers were proper defendants. This suit does not raise those questions because it was brought against the state of Texas itself, and the state has no immunity from suits by the United States. The Fifth Circuit ignored that distinction, which refutes the court’s only justification for the stay.” When the justices refused to lift the stay, instead setting the case for the argument that took place on Nov. 1, Justice Sonia Sotomayor echoed the solicitor general’s point in a powerful dissenting opinion.
There is no conceivable excuse for the Fifth Circuit’s failure to explain itself or for the Supreme Court’s failure to call the court to account for its dereliction of duty. But so far, the Fifth Circuit is winning. S.B. 8 is still in effect.
Let’s not forget that this is the same court that in 2018, in a challenge brought by an abortion provider, June Medical Services, upheld the Louisiana law that required doctors who provide abortions to have admitting privileges at nearby hospitals. It was bad enough that this was a requirement that, in the political and religious climate in Louisiana, doctors could not meet. What was really wrong with the Fifth Circuit’s decision was that two years earlier, in Whole Woman’s Health v. Hellerstedt, the Supreme Court invalidated an identical law from Texas. In that case, the Supreme Court overturned a Fifth Circuit decision concluding that the admitting privileges requirement, despite having resulted in the closing of nearly half the abortion clinics in Texas, did not impose an “undue burden” on women’s access to abortion.
For the Fifth Circuit to then turn around and uphold the Louisiana law — with an analysis that boiled down to “that was Texas, and this is Louisiana” — was an act of judicial defiance that was too much even for Chief Justice John Roberts, who dissented in the Texas case. In his separate opinion in June Medical v. Russo, concurring with the decision to overturn the Fifth Circuit and strike down the Louisiana law, he made clear that he still thought the majority was wrong in the Texas case but that the Fifth Circuit was nonetheless bound by the precedent the Supreme Court had set.
If the chief justice’s intention in that 2020 opinion was to deliver the Fifth Circuit a slap on the wrist, the pain of that slap has evidently dissipated. If anything, the justices’ recent series of responses to the S.B. 8 litigation has served to enable and even to empower a lower court that has lost awareness of its place in the judicial hierarchy.
And maybe some members of the Supreme Court think that’s just fine: Let the Fifth Circuit do the dirty work, pushing the law in their preferred direction while they sit back and look judicious. But that’s a mirage. When the Supreme Court allows a lower court to go rogue, it is going rogue itself. Most people may not be able to locate the Fifth Circuit on a map, but there is no such invisibility for the Supreme Court. The public sees what it sees. The women of Texas can’t exercise a constitutional right, and the coronavirus is still killing a thousand Americans a day.
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