The John Minor Wisdom U.S. Court of Appeals Building, just across the street from historic Lafayette Square, in downtown New Orleans, is one of the most majestic courthouses in the country. Erected in the years leading up to World War I, it was designed in the Italian Renaissance Revival style and subsumes an entire city block. Its Ionic colonnades recall the Supreme Court building in Washington, D.C. Step inside the lobby known as the Great Hall, and it feels as if you’re walking into a cathedral with marble columns, arched windows, and towering ceilings decorated with bas-relief figures.
Upstairs are the offices, chambers, and courtrooms of the 26 judges who sit on the United States Court of Appeals for the Fifth Circuit. These hallways are generally quiet, the stillness occasionally broken by lawyers and judges speaking in hushed tones that echo the length of the building.
You wouldn’t know it, but inside this calm, stately space, a revolution is brewing, one that is boldly transforming American law, redefining constitutional precedent, and tossing aside long-standing norms about partisan behavior by federal judges. This movement has already overturned the right to an abortion and is actively gunning to curtail the federal government’s ability to regulate everything from voting rights and banks to clean air and water. The most familiar faces of this revolution are the conservative justices on the Supreme Court. But at the vanguard are many of those serving on the nation’s thirteen courts of federal appeal. And no court is pushing this agenda further than the Fifth Circuit.
The Fifth handles cases that originate in Louisiana, Mississippi, and Texas. More than half of its active judges have strong Texas ties. Like other circuit courts, the Fifth divvies up the majority of its cases among panels of three judges. Most of the work is done behind closed doors, but for a few days a month, these panels meet for oral arguments that are open to the public. Though the French Quarter is only six blocks to the north, the Fifth attracts few tourists. The audience is typically limited to law clerks and a handful of attorneys waiting their turn to argue, perched on wooden pews with engraved railings.
One day this spring, Judge James Ho sat on the bench in the East Courtroom, his broad face motionless except for his eyes, which he has a habit of squeezing tightly shut, then springing open, sometimes every few seconds. On the other end of the bench sat Judge Don Willett, looking like a reserved professor with a peach-colored bow tie peeking out above his robe. While Ho engaged with every lawyer, Willett spoke only occasionally. He often fidgeted, pressing his fingertips together or biting his nails. In the middle sat the presiding judge, Stephen Higginson, who was gregarious and asked the most questions of the three, amiably parrying with the attorneys.
Much of the business of the Fifth is routine: Medicare fraud, breach of contract, statutes of limitations. That was true on this day. One case involved product liability and an allegedly faulty French press coffee maker. At one point, Ho asked a lawyer, “What is your evidence in the record that there was actual contact between the coil and the glass?” On such issues—with the vast majority of the law, in fact—there is not much room for partisanship. “There’s a constant fire hose of normal cases,” a lawyer who often appears before the Fifth explained. “This guy’s mad at the other guy, Social Security disputes. Politics has nothing to do with it.”
But occasionally the Fifth gets a very different kind of case. On January 7, the judges were asked to rule on a procedural matter related to the constitutionality of Texas’s controversial Senate Bill 8, or the so-called Heartbeat Act, passed by the Legislature last year. The law deputized private citizens to sue anyone who helps a person get an abortion after embryonic cardiac activity is detected (which usually occurs around six weeks in, before many people learn they’re pregnant), effectively banning the overwhelming majority of abortions in Texas. At the time SB 8 was passed, many believed it was so impudent it wouldn’t survive court scrutiny. They were wrong. The judges on the Fifth deployed a series of procedural maneuvers that allowed the Heartbeat Act to go into effect. Ultimately, the Supreme Court allowed the law to stand, and Justice Sonia Sotomayor accused her colleagues and the Fifth of working together and using “procedural manipulation” to destroy a constitutional right. “This case is a disaster for the rule of law,” she wrote.
Many liberals as well as centrists have been outraged by such decisions. “The 5th Circuit is staking out a claim to be America’s most dangerous court,” editorialized the Washington Post. Slate headlined a story “One U.S. Circuit Court Is Breaking Every Rule in the Book to Push Its Radical Agenda.” Some traditional conservatives too have been taken aback. A Republican former state appellate judge told me, “SB 8 is so far afield from what the law has been—they found a way to evade Supreme Court precedent.”
To anyone closely tracking the Fifth’s evolution over the past few years, such behavior wasn’t surprising. The Fifth, based as it is in the Deep South, has long been a conservative court; three of its last four chief judges (including the current one, Priscilla Richman) have been Texans. But some serving on the bench today have departed from many of the values that have long been at the core of judicial conservatism. Several of the judges spearheading the abortion fight were appointed to the Fifth by Donald Trump, who transformed the federal judiciary during his term as president. Four of these Trump appointees—Stuart Kyle Duncan, James Ho, Andrew Oldham, and Don Willett—are arguably the most transformative figures on the court. And they all have roots in Texas Republican politics.
They are brash, brilliant, and highly influential. Josh Blackman, a conservative professor at South Texas College of Law, in Houston, who is acquainted with all four, told me a pair of Ho’s fierce anti-abortion opinions were forerunners of Dobbs v. Jackson Women’s Health Organization, the Mississippi case that just overturned Roe v. Wade. “Lower courts can exert upward pressure on the Supreme Court in ways that aren’t obvious,” he said. “You can draw a straight line between Ho’s opinions on the unconstitutionality of abortion in 2018 and 2019 and Dobbs in 2022.”
Most judges who are appointed to the federal judiciary, whether conservative or liberal, are being rewarded for a successful career as lawyers in government service or private practice. Many federal judges first served on lower state or federal courts, where they learned to weigh both sides of thorny issues. Those who aspire to become federal judges have traditionally avoided taking public positions on issues that might come before them in the future. They have generally eschewed involvement in political campaigns and association with partisan organizations. But these Trump appointees on the Fifth have broken that mold. They spent years in the trenches of Texas politics, allied closely with the most powerful elected officials in the state: George W. Bush, John Cornyn, Ted Cruz, and Greg Abbott. They fought partisan conflicts at the behest of their bosses: for school prayer and the death penalty; against abortion, Obamacare, gun restrictions, benefits for same-sex couples, rules allowing transgender Texans to use the restroom they want to, and regulations on air pollution and banking.
None of these four would agree to be interviewed, but a close examination of their work on the bench, and conversations with those who know them, suggests that their time in politics has strongly shaped both their decisions in the courtroom and their outspoken behavior outside it, a pattern that worries even longtime conservatives. I spoke with seven current and former state and federal judges from across Texas, most of them Republicans, and most of whom would agree to interviews only if granted anonymity. (They all have relationships with judges on the Fifth; some now argue before the court as appellate lawyers.) All are concerned about the Fifth, whose judges serve lifetime appointments. “I’d call myself a conservative, a ‘Judges should stay in their lane’ sort of judge,” one told me. “But there are no barriers with this new iteration. What they’re doing is a lot more activist—and agenda-driven. They know where they want to go, and their view is that legislation shouldn’t stand in the way of getting there, nor should precedent restrain what they do.”
Ten years ago, the harshest criticism a conservative could make about a court was that it was activist—that its judges let personal politics influence their decisions. But today, the Fifth is one of the most openly activist courts in the country. “I would label it so,” a current judge on the Fifth lamented to me.
This is perhaps most evident in what seems to be a systematic campaign to dismantle what conservative activists call the administrative state, the broad powers held by federal regulatory bodies such as the Environmental Protection Agency, established by Congress in 1970, and the Securities and Exchange Commission, created during the Great Depression to oversee financial markets that had been subject to insider manipulation and fraud. For decades, many conservatives have asserted that under a strict reading of the Constitution, Congress cannot delegate its legislative powers, including to unelected bureaucrats who run these agencies. That theory, if acted upon, would drastically weaken the government’s regulatory powers at a time when the world is changing so fast technologically, scientifically, and socially that Congress can’t possibly keep up with it.
The Fifth has helped usher this theory from the fringe to the mainstream. Oldham, for example, has gone on the record about the “illegitimacy” of the administrative state, and in May he was part of a decision holding that the SEC had acted unconstitutionally when it disciplined a hedge fund manager for fraud. The opinion sent shock waves through the legal world. “The Fifth Circuit gutted the Securities and Exchange Commission,” wrote Joe Patrice, senior editor at the legal blog Above the Law.
But it’s not just the rulings these judges are making, it’s how they are making them: brazenly, swiftly, and sometimes with a dose of snark. “It’s so brutal up there,” one appellate lawyer told me of the language in the opinions, “it’s like blood sport.” A former clerk who is now an appellate attorney agrees. “It is a rancorous court. To put a blunt point on it, the quiet part is said out loud.”
Royal Furgeson, who spent nineteen years on the federal trial bench before retiring to become founding dean of the University of North Texas at Dallas College of Law, chooses his words carefully when he talks about the judges on the Fifth. “Some of the judges are pushing the envelope. And if you push too far, it could have worrisome consequences for the rule of law, which is the foundation of our democracy,” he told me. “As long as judges are guided by balance and restraint, as well as the facts, justice will be done.”
Of course, balance and restraint won’t get you very far in Texas politics.
When Donald Trump, a former Democrat who favored abortion rights, was running for president, he knew he needed to shore up his bona fides with evangelical voters. In March 2016, he met with Leonard Leo, the cochairman of the Federalist Society, a powerful right-wing legal group.
The society was formed on the campus of Yale University during a three-day seminar in 1982. Some two hundred were in attendance, among them heavyweights including future Supreme Court justice Antonin Scalia and federal judge Robert Bork, who would be famously rejected as a Supreme Court nominee five years later. Central to the society’s mission is an “originalist” view of the Constitution, the idea that the words of the document should be interpreted according to the initial intention in 1787. This belief runs counter to the more mainstream and widespread notion of a “living” Constitution, which takes into account the context of current realities that the country’s founders could not have anticipated.
The Federalist Society has become much more influential in recent years. Many legal giants on the right have been members of or are closely associated with the group, including current Supreme Court justices John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Some on the left—especially those upset by the Federalist Society’s growing power—have suggested that it is part of a right-wing conspiracy to take over the judiciary. Dallas appellate lawyer David Coale, who writes a popular blog about the Fifth, says it’s not that dramatic. “They have a very well-developed, philosophical view of how the law ought to work,” he told me, “and an outsized voice in conservative circles when it’s time to assess people for the judiciary.”
After his 2016 meeting with Leonard Leo, Trump went public with a short list from which he would choose his federal judges. “All picked by the Federalist Society,” he boasted in June 2016.
It wasn’t always done this way. In 1977 President Carter, in a desire to diversify the mostly white male federal judiciary, established a nominating commission to help him select judges. During his term, the number of judges of color nearly doubled and the number of women quintupled. Carter’s successors continued to nominate from a wider pool of candidates than in the past. Nominees might be recommended by staff or senators, including members of the opposing party. “The candidates were those in the mainstream of judicial thought,” former federal judge Nancy Gertner said in 2020, “even if on the right or left side of that stream.”
In its singular reliance on the Federalist Society, the Trump nomination process was unprecedented. “I’m not saying the Trump appointees are unqualified,” a former federal judge from Texas told me. “But so many of them didn’t go through the process as it was intended. It was short-circuited. The Federalist Society became a litmus test. I don’t think that process is right or appropriate, to just have one organization having veto power over the process.”
Trump wound up appointing 226 federal judges, including an astonishing 54 to the appellate courts—only 1 fewer than Obama, who had two terms in office. And Trump kept his promise: more than 90 percent of his nominees had ties to the Federalist Society. “They’re the chosen ones,” a former clerk at the Fifth told me. They included Duncan, Ho, Oldham, and Willett, who’d all been relatively young (between 39 and 51) when nominated. Though they were born in very different places—Louisiana, Taiwan, Virginia, and Texas, respectively—they were all in the Federalist Society and clerked for mostly conservative federal judges. They all learned their trade in Republican politics—three of them as close advisers to top lawmakers.
Willett, the eldest of the four, got his start in 1996 working for then-governor Bush as he set his sights on the White House. Willett has an almost cinematic origin story. He was from the small town of Talty, just east of Dallas, where his mother worked as a truck stop waitress. Talty was so small, he would later jest in speeches, “our town square had only three sides to it. Our zip code began with a decimal.” Willett grew up in a double-wide trailer surrounded by cattle. He rode bulls in rodeos and sang in his Baptist church choir. After graduating from Baylor, he earned a degree from Duke University School of Law and then worked as a fellow at the Texas Public Policy Foundation, a conservative think tank funded largely by oil and gas money. In 1996 Willett began advising Bush, whom he followed to Washington as a special assistant to the president, writing some of his first executive orders. One created the Office of Faith-Based and Community Initiatives, formed to make the president’s idea of “compassionate conservatism” a reality by giving local religious organizations federal money to do their work. Willett became its deputy director.
In 2003 he returned to Texas and served as the chief legal adviser for then–attorney general Greg Abbott. “Being a counselor to a political figure locks in a kind of linkage between the political and legal ideologies,” an appellate lawyer told me. Willett would later say that Abbott gave him and other young lawyers the job of “scouring the national legal landscape and positioning Texas at the vanguard of conservative legal dynamism.” For two and a half years, Willett worked hand in hand with Abbott. “I was at this never-dull intersection of law, policy, politics, and at [Abbott’s] elbow for every major legal issue confronting the state,” Willett said in a recent episode of the Texas Appellate Law podcast.
In 2005 Governor Rick Perry appointed Willett to fill a vacancy on the state Supreme Court. Willett became something of a sensation, known for wearing colorful bow ties and spinning down-home humor on Twitter, where he attracted more than 110,000 followers. He brought an unusually conversational style to his legal writing, sometimes referencing pop culture. When he ran for reelection in 2011, the Young Conservatives of Texas endorsed him, saying, “Justice Willett has earned consensus support from every corner of the conservative movement: pro-life, pro-faith, pro-family, pro-liberty, pro-gun rights, pro-law enforcement, pro-private property, and pro-limited government.”
On the campaign trail, Willett said he still had work to do, reportedly proclaiming, “I intend to build such a fiercely conservative record on the court that I will be unconfirmable for any future federal judicial post—and proudly so.”
Like Willett, Ho spent his early legal career in service of then-governor Bush. He worked for Gibson Dunn, the firm that litigated the controversial Bush v. Gore lawsuit that determined the 2000 election. Ho had a dramatic origin story too. Born in Taipei, Taiwan, in 1973, he immigrated to the U.S. as a child. He grew up in the wealthy Los Angeles suburb of San Marino, learning English by watching Sesame Street. “I was not born an American,” he later testified before a House Judiciary Committee hearing on the importance of a diverse judiciary. “But I thank God every day that I will die an American.” Ho wrote for his high school newspaper, and a fellow editor later remembered his articles by their “passionate, sometimes over-the-top style.” After graduating from the University of Chicago Law School, he worked as chief counsel for Senator Cornyn and clerked for Supreme Court justice Thomas.
In 2008 Abbott hired him as the state solicitor general, calling him “one of the nation’s most promising lawyers.” The solicitor general’s office was a division of the attorney general’s office that had been founded in 1999 by Cornyn to handle appeals to the state and federal courts. Cornyn wanted specialized lawyers to work these issues, which often involved public policy matters such as abortion and the death penalty. The state’s first big-name SG was Ted Cruz, who had been instructed by Abbott, “I want you to look across the country, and if we can step up, defend conservative principles, and make a meaningful difference, go do it.” One way states can do this is by filing amicus (“friend of the court”) briefs in the Supreme Court regarding constitutional issues that affect their citizens. For the next five years, Cruz filed briefs in case after case—against abortion rights and gun control, for tougher restrictions at the Mexican border.
By 2008, when Ho took over, the OSG had become one of the most assertive legal outfits in the country, a bustling think tank for young, smart lawyers, many of whom were aggressively conservative. Ho led the office for roughly two years, appearing before the Fifth to argue that the words “under God”—recently added to the Texas Pledge of Allegiance—were constitutional, as was the moment of silence after the pledge. Texas won.
After Ho left, his replacement, Jonathan Mitchell, would devise the novel legal strategy behind the anti-abortion Heartbeat Act. Meanwhile, Ho strengthened his relationship with Cruz, joining the board of directors for his 2012 Senate run. A few years later, when Cruz ran for president, Ho, in a campaign video, gave a passionate introduction to his political mentor: “There is no one in my generation who has done more to champion constitutional conservative causes than Ted Cruz.”
In 2013, just before his office challenged an Equal Employment Opportunity Commission rule, Abbott famously said, “I go into the office, I sue the federal government, and I go home.” Although a federal judge would dismiss that suit, a recent hire of the OSG, Andrew Oldham, would later appeal—leading to the Fifth’s upholding Abbott’s position in 2016.
Oldham grew up in Lynchburg, Virginia. His parents were doctors, and he was on track for medical school when he took a class with a professor who taught antitrust law at the University of Virginia that inspired him to instead pursue a law degree (“the place God had for me,” he later said) at Harvard. He clerked for Alito on the Supreme Court and worked for George W. Bush’s Department of Justice in the office of legal counsel, then got a job with a private D.C. law firm. Oldham, who became known for wearing Lucchese boots, one day got a call from someone in Abbott’s office. “I hear you love Texas,” Oldham later recalled them saying. “Would you be open to selling all of your things and moving fifteen hundred miles away?” Oldham said he realized “it was God opening a door.”
In 2013 at the OSG, he cowrote an amicus brief for Texas in the Shelby County case before the Supreme Court, defending the state’s restrictive photo-ID voting law, which the Legislature was later forced to amend after a federal judge found that it discriminated against Black and Hispanic voters. In the brief, Oldham’s team also asserted that Section 5 of the 1965 Voting Rights Act—the heart of the law that had been used for decades to fight discrimination at the polls by requiring states with a history of racial discrimination to get approval from the Justice Department before amending voting laws—was no longer necessary. Five months later, the Supreme Court, in one of its most controversial contemporary rulings, invalidated Section 5, opening the door to the types of restrictions on voting that the Texas Legislature passed in 2021. Oldham also played a pivotal role in the state’s battle against Deferred Action for Parents of Americans, the parental version of DACA, which blocked the law from going into effect.
When Abbott became governor in 2015, Oldham became his legal adviser and helped put together the Texas Plan, a 92-page proposal for a new constitutional convention that would combat overreach by the federal government, which had become a major grievance for Oldham. “One of the reasons why the administrative state is enraging is not that you disagree with what the EPA does, although I do disagree with a lot of what it does,” he said at a Federalist Society forum in 2016. “That’s not the thing that makes it enraging. It’s the illegitimacy of it.”
Roughly 1,500 miles away, in Washington, D.C., a fellow alumnus of the Texas Solicitor General’s office was also fighting against DACA, DAPA, and Obamacare. His name was Kyle Duncan. Originally from Baton Rouge, the LSU grad had been a brilliant student (he had one of the highest GPAs in his graduating class) who’d gone on to LSU law school, then worked in private practice in Houston before getting hired by the OSG in 1999. Duncan worked in Austin for three years under then–attorney general Cornyn. After leaving, he taught at the University of Mississippi’s law school before working in the attorney general’s office in Louisiana.
In 2012 he was hired as general counsel to the right-wing Becket Fund for Religious Liberty, in D.C., where he famously—and successfully—wrote the Supreme Court briefs in the Hobby Lobby case. The court ultimately agreed with Duncan that requiring a company to provide contraceptive coverage for female employees under Obamacare violated its owner’s religious freedom. After that, Duncan established his own D.C. law firm and opposed transgender teens in North Carolina and Virginia who wanted to use their preferred bathrooms. When the Supreme Court was considering whether to legalize same-sex marriage, Duncan filed an amicus brief signed by fifteen states arguing against it, positing that the court had already decided the matter, leaving it up to the states. The Supreme Court ruled the other way in 2015, holding in Obergefell that the Fourteenth Amendment protected marriage for same-sex couples.
Through these various high-profile crusades, Duncan became well-known in conservative circles, and he kept his hand in politics by joining Marco Rubio’s religious liberty advisory board when the senator ran for president in 2016. By that point, Cornyn and Cruz were in the U.S. Senate, Abbott was governor, and Texas was at the forefront of the right-wing movement that had put Trump in the White House. Eight months after Trump took office, he nominated Ho and Willett to the Fifth. Oldham and Duncan soon joined them.
What happened next was, in hindsight, predictable. “Look at the places these guys came from,” said Martin Siegel, the director of the Appellate Civil Rights Clinic at the University of Houston Law Center. “They were warriors in all these pitched legal battles that were also political and cultural battles. What everyone wanted to know was, were they going to pull their punches once they put on the black robes?”
Ted Cruz, writing for the National Review in 2005, described an activist judge as someone who “will substitute his own personal policy views for the clear dictates of the law.” By this definition, the Fifth has arguably become the most activist court in the country. The agenda of many judges on the court is simple, says one Republican former state appellate judge: “Advance Federalist Society doctrine and oppose liberal social innovations and policies.”
In 2019 the Fifth attempted something that Republicans in Congress had failed to do several times: scuttle Obamacare. The constitutionality of the Affordable Care Act had already been upheld by the Supreme Court seven years earlier, but in Texas v. United States, the Fifth ruled that the individual mandate was unconstitutional. This was too much even for the conservative Supreme Court, which overruled the Fifth last summer.
The Fifth has been at constant war with Biden-era COVID-19 vaccine mandates, ruling against them four times, including rushing to throw out one instituted by the Occupational Safety and Health Administration in 2021, even though the court had no authority to do so. The Sixth Circuit was selected by lottery to rule on that case. This led the New York Times to dub the Fifth “a rogue court.”
Earlier this year, a panel of the Fifth ruled in favor of United Airlines employees who objected to a company-wide COVID vaccine mandate in part because of concerns that laboratory-grown cells, developed with aborted fetal tissue collected decades ago, had been used to develop or test the vaccines. The panel said the employees were being coerced to “contravene their religious convictions” and forced the lower court to reconsider an injunction against the mandate, which stoked the ire of Jerry Smith, a 75-year-old conservative who has served on the Fifth for 34 years. He authored an angry 58-page dissent accusing the judges of “inventing and distorting facts” to fit their reasoning. “The majority junks our precedent to get the answer it wants,” he wrote, going so far as to say, “The Good Ship Fifth Circuit is afire. We need all hands on deck.”
Days later, the Fifth sided with 35 members of the Navy, including more than two dozen SEALs, some of whom claimed to have received “divine instruction not to receive the vaccine,” in defiance of orders by their superiors. The result: the unvaccinated sailors were reinstated with their units. An appellate lawyer told me, “The idea that the Fifth Circuit, a court that traditionally defers to the military, would tell the Navy SEALs, of all people, who to deploy is so insane.” A month later, the Supreme Court reversed the Fifth’s ruling.
“It seems clear that some of the new judges feel very strongly about religious freedom,” Furgeson, the former judge, told me. “The problem is that none of our constitutional freedoms are absolute. They all have limits, and there’s been a pretty strong consensus in our judicial ranks that forcing any freedom to its outer limit is not a good idea in a nation as diverse as ours. We have to all find a way to live with each other, and establishing absolute constitutional rules can make that hard to do. How do we live together as a society if we decide religion trumps everything?”
UT School of Law professor Stephen Vladeck has argued that the vaccine mandate cases are less about religious freedom than about “the judiciary’s power to undo the modern administrative state.” Lately, the Fifth has worked even harder at this subversion. Twice in the past year, the court attacked the SEC, first in December, when it ruled that federal courts could intervene in a case in which SEC administrative law judges had previously had the last word. Judge Gregg Costa dissented, noting that every other federal circuit court that had considered the issue decided the other way: “This holding risks serious disruption of the administrative scheme that the Exchange Act created.” Costa, a moderate, clearly viewed this as an attack on the whole scheme of federal regulation.
Then came the hedge fund fraud case, in which the Fifth brushed aside decades of Supreme Court precedent to hold the SEC unconstitutional on three different grounds. “Any one of those grounds could have momentous consequences for not only the SEC but a number of agencies,” said Blake Emerson, a professor of law at UCLA. “Each could limit Congress’s ability to regulate economic, financial, social, and environmental issues.” In a footnote, the panel openly advertised its political preferences, as judges on the Fifth often do, approvingly referencing a famous 1986 speech by Ronald Reagan in which the president said, “The nine most terrifying words in the English language are ‘I’m from the government, and I’m here to help.’ ”
The Fifth’s antipathy to long-established regulations was on display again in May when a panel that included Oldham jumped into another political controversy: whether social media companies should be allowed to moderate content on their sites—an emotional issue for many Republicans ever since Twitter banned Trump for inciting violence at the Capitol on January 6, 2021. Republicans in Texas passed a law that year that forbade social media companies from censoring a user for holding a particular point of view, a move which tech companies warned could result in an influx of hateful content and disinformation. A federal judge, claiming that the law violated the First Amendment, blocked it. Five months later, the Fifth overturned him—without explanation, in a remarkable one-sentence ruling. Social media companies appealed to the Supreme Court, arguing that the Texas bill “is an unprecedented assault on the editorial discretion of private websites.” In May, the Supreme Court agreed, overturning the Fifth and blocking the Texas law.
The judiciary, of course, has always been more political than it likes to admit. The Fifth was once a steadfastly liberal court, derided all across the South, especially for its rulings on civil rights. When the Supreme Court released its monumental Brown v. Board of Education decisions in 1954 and 1955, making racial segregation in public schools unconstitutional, Southern states at first refused to follow the law. That’s when the Fifth stepped in.
Judge John Minor Wisdom, for whom the Fifth Circuit building is now named, and three other judges led the way in issuing a series of decisions upholding the power of the federal government to not just forbid discrimination but actively require integration. Conservatives and fellow Southerners were horrified; another judge on the Fifth thought the Minor faction’s opinions were so apocalyptic he nicknamed them “the four.” Others held them in higher esteem. “Without the Fifth Circuit,” a civil rights lawyer told Time in 1964, “we would be on the verge of actual warfare in the South.”
Traditionally, even when judges issue controversial opinions, they hew to an ideal of impartiality, upholding their images as independent stewards of the law. “Predictability, precedent, stare decisis,” Furgeson explained. “Those things are very, very, very important. Avoid the extremes, find the middle. Justice John Roberts says he just calls balls and strikes. What he really means is, when you have a case before you, decide it on the facts and the law—don’t go beyond that.”
This is not the philosophy of the four men with Texas roots serving on the Fifth today. Ho is perhaps the most zealous of the bunch. In his first opinion as a judge on the Fifth, regarding a case about campaign finance laws, he sounded a lot like the Texas politicians he once worked for. “If you don’t like big money in politics,” he wrote, “then you should oppose big government in our lives.” In 2018 he penned an opinion that discussed “the moral tragedy of abortion.” In another decision, he suggested it was folly to “blindly follow the scientists” because they are “susceptible to peer pressure, careerism, ambition, and fear of cancel culture.”
The other three are similarly fervent. In 2018 Willett wrote in a dissenting opinion that the entire Federal Housing Finance Agency is unconstitutionally structured, gleefully declaring, “The FHFA’s professed power is something special—so spacious it’s specious.”
Oldham, meanwhile, has become a leader in the effort to dismantle federal power. Last year, he authored a forty-page concurrence in the case about the SEC administrative law judges, laying out much of the history of the American regulatory system and painting it in authoritarian tones. It all began, Oldham wrote, in the study of German historicism by Woodrow Wilson, who “despised democracy” and “wanted administrative agencies to operate in a separate, anti-constitutional, and anti-democratic space.” Such politically charged history lessons are almost unheard of in appellate opinions.
For his part, Duncan, who’d spent years combating the expansion of gay and transgender rights while working in D.C., issued a 2020 opinion that echoed his work as an advocate. The case involved a trans inmate’s asking to be referred to in court proceedings with feminine pronouns. “I am a woman,” she wrote. “Can I not be referred to as one?” Duncan led the charge to deny her request, devoting several pages to hypothetical problems this could create. In his dissent, Judge James Dennis noted that it was actually a simple request and that “many courts and judges adhere to such requests out of respect for the litigant’s dignity.” In fact, the Fifth had done so in the past. “Ultimately,” Dennis concluded, “the majority creates a controversy where there is none.”
It wasn’t the first time. According to numerous lawyers and judges I spoke to, these lengthy, combative opinions have weakened the tradition of congeniality on the court. “I read every published decision by the Fifth for guidance on how we should handle cases and disputes,” an appellate attorney told me, “and it is astonishing to me how contentious this court has gotten. Appellate courts are there to review the decisions of lower courts. That’s their job, and they should do it constructively. Snark and disregard for other judges isn’t helpful. Now, particularly with Ho, you’ve got this attitude. There’s a sense of reigning with impunity.”
Ho’s pugnacious reputation was solidified in 2020, when he wrote an opinion in a case involving overtime pay, then wrote a special concurrence to respond to a dissent written by Judge Jacques Wiener. “As the adage goes,” wrote Ho, “the loudest voice in the room is usually the weakest.”
A federal judge I spoke to was deeply troubled by the exchange. “The author of the majority decision wrote a separate concurring opinion for the sole purpose of bench-slapping a well-liked and long-tenured colleague. I’m not necessarily disagreeing with the reasoning of the majority opinion, but the dissenting judge did not deserve the obvious lack of respect and the ‘I’m smarter than you are’ tone. Judges can disagree on the law and still be respectful of legitimate differences on the outcome of a case.”
According to Gabe Roth, who runs the nonpartisan nonprofit Fix the Court, “It feels like high school. Who can dish out the best dis in the locker room? There’s a lot of ball spiking from this new cohort of conservative judges, and it’s unbecoming. You don’t need to spike the ball. Everyone is competing to see who can get the most shoutouts in the National Review and on Fox News.”
Ho played directly to the right-wing crowd when he wrote a 2021 opinion defending police officers who had used a Taser to shock a man drenched in gasoline, thereby setting him on fire: “As judges, we apply our written Constitution, not a woke Constitution.”
An appellate lawyer I spoke with suggested that “some of Ho’s concurrences read like op-eds. Even if you agree with him, that’s not a judicial opinion—that’s something else. He’s telling us what he thinks about some kind of political issue.”
In February, Ho, speaking at a Federalist Society meeting at Georgetown University, decided to change his topic at the last minute to defend conservative author Ilya Shapiro, who’d recently come under fire for tweeting that Biden would probably nominate a “lesser Black woman” to the Supreme Court. “If Ilya Shapiro is deserving of cancellation,” said Ho, “then you should go ahead and cancel me too.”
The speech made its way onto the opinion pages of the Wall Street Journal. It was almost as if Ho were running for higher office. While such behavior may have in the past precluded him from consideration for the Supreme Court, he seems to be effectively currying favor. “They’re all auditioning for the Supreme Court,” says a longtime Texas appellate attorney. “No question about it.”
One of the more telling symptoms of the politicization of the Fifth Circuit was the recent resignation of Judge Costa, effective August 31. Though he was appointed by Obama, Costa was no ideologue; he had clerked for conservative Supreme Court chief justice William Rehnquist and become a reliable voice of reason on the Fifth, respected by all sides. Costa had served on the court since 2014, and he seemed content there. In an October 2020 interview, he said of his future on the Fifth, “I’m going to be here decades, hopefully.”
Then, this January, just weeks after his dissent in the SEC case, he abruptly said he was stepping down, at age 49. The legal world was shocked. Young judges rarely leave federal judgeships. Publicly, Costa said he missed working as an attorney and was eager to return to practicing law in Houston. But several legal observers were dubious, including one Republican-appointed judge I spoke with. “He’s saying, ‘I’m going to be happier as a lawyer.’ I don’t know Gregg Costa well, but really? And why now? I think he’s being overly polite. I’m not buying it.”
Furgeson lamented Costa’s departure and is concerned about the effect it will have on the Fifth. “Judge Costa is an exceptionally gifted jurist and an important voice on the federal appellate bench,” he told me. “He’s like Roberts. He just calls balls and strikes. I hate to see him go.”
Furgeson emphasized that he respects and likes all of the new judges. “You can sit down with Jim Ho or Don Willett with a glass of iced tea and have the most enjoyable afternoon.” But he’s alarmed at how hard and fast they’re pushing things. “I think they’ve decided that there are parts of our law that went the wrong way and they need to bring them back to the right way.”
When I asked Blackman, the South Texas College of Law professor who knows all four men, about the fundamental principle that drives them, he put it this way: “The gist of it is, the Supreme Court has gone awry in many areas, and those are the areas that animate you the most. If the precedent is correct, there’s nothing to get animated about. If the precedent is incorrect, you get animated.”
In this way, they’re much like their mentors, in particular Thomas and Alito, who have repeatedly said they are willing to overturn precedents they believe to be unsound. Of course, Alito wrote Dobbs, noting, “The Constitution makes no mention of abortion.” The only unenumerated rights that should pass muster, he wrote, are ones “deeply rooted in this Nation’s history and tradition.”
Blackman isn’t the only one who thinks Alito’s opinion was influenced by Ho’s vociferous language in previous abortion rulings, such as one in 2019 in which he argued, “Nothing in the text or original understanding of the Constitution establishes a right to an abortion.” When Judge Edith Jones, another Texan who has been on the Fifth since 1985, spoke about Dobbs at a Federalist Society convention in November 2021, she said of Ho’s opinions and other powerful decisions from the lower courts, “Of course they have an effect when the time is right.”
Furgeson worries about what might happen if the Fifth continues dismantling federal regulatory power, especially because several conservatives on the Supreme Court have also expressed views hostile to civil servants who formulate regulations to implement laws passed by Congress. “The question is, how far do you go? This is a country with 330 million people that is very complex and where agencies have great expertise to deal with that complexity. If we write off their expertise, can we keep our air clean, our water pure, our food safe?”
Blackman told me that when Oldham wrote his long critique of the administrative state, his audience was the Supreme Court. “Oldham is saying, ‘Okay, Alito. Okay, Gorsuch. Here’s what I wrote—now it’s up to you.’ ”
In the wake of Dobbs, the high court seems primed to eviscerate other major precedents and institutions. Thomas, in his concurring opinion, called for the court to reconsider decisions upholding the rights to obtain contraceptives as well as the rights of same-sex couples to engage in relationships and get married. Once again, all the Supreme Court needs is a lower-circuit court to do the legwork. The judges on the Fifth—such as Duncan, for example, has already spent years as an advocate opposing same-sex marriage—are already well-positioned to do it. And DACA, which has been an integral part of American life for a decade, could be next on the chopping block. Ho sat on a July 6 panel that heard oral arguments on repealing the program.
This turn toward judicial activism comes at a time when the public’s confidence in the Supreme Court is at its lowest since Gallup started polling on the issue in the seventies. Given that most Americans are in favor of some form of abortion access, the court’s approval rating will likely slip further after Dobbs. Sotomayor put the issue memorably during oral arguments for Dobbs in December, when it became clear the court would soon overturn Roe: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
Many are asking the same question about the Fifth. “Courts shouldn’t just be impartial and separate from politics,” an appellate lawyer told me. “They should be seen as being impartial and separate from politics. That’s the essential problem with the Fifth Circuit. When people think, ‘They’re just Republicans and doing the Republicans’ bidding,’ that’s when you chip away at the legitimacy of the appellate courts.”
Furgeson, who has spent nearly six decades studying the law, agrees. “You can’t upend everything overnight and think you’ll have the respect you need for the courts and the law. That really, really worries me,” he said. “At our best, judges achieve justice by being aware of how the law has developed and of how balance has been struck between the liberty of the individual and the demands of organized society. It’s not easy to do, but judges have done it, more often than not.”
At least, they used to. These days, that’s just one more precedent the activist judges on the Fifth Circuit seem eager to reject.
This article originally published online on June 27, 2022. It appeared in the September 2022 issue of Texas Monthly with the headline “Politicians in Black Robes.” Subscribe today.