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How Trump appointees have helped transform the Fifth Circuit

ELISSA NADWORNY, HOST:

2022 was a big year for federal courts, and not just the Supreme Court. The 5th Circuit Court of Appeals, which oversees cases out of Texas, Louisiana and Mississippi - they had an especially busy year. Throughout the year, judges on that court blocked a number of President Biden's policies. And even if you don't live in those states, their decisions affect everything - from federal immigration policy, like who gets to enter the country and how they're policed, to how student debt will be handled, including a challenge to Biden's student loan cancellation program. One of the cases that's before the Supreme Court came out of the 5th Circuit, and it will be argued in the February session.

Ian Millhiser is a senior correspondent at Vox, where he covers the law and federal courts. In a recent piece, he argues that the 5th Circuit Court of Appeals is one of the most conservative courts in the country. When we spoke, I asked him for a primer on the federal courts and how exactly the 5th Circuit fits into that picture.

IAN MILLHISER: The federal court system has three levels. There are the district courts, which are the trial courts, which hear the first round of every lawsuit that is filed. There are the circuit courts or the courts of appeals, which hear appeals, and there are 13 of those circuit courts. So the country is divided up into different regions. And depending on where you live, you are in a different circuit. And then, of course, there's the Supreme Court.

NADWORNY: OK.

MILLHISER: These circuit courts are very, very powerful. As you noted in the intro, the 5th Circuit presides over all federal cases that come out of three different states, including Texas, which is not just a very big state, but the Texas attorney general's office has become basically a litigation shop that files a lot of lawsuits challenging Biden administration policies.

NADWORNY: So how did the 5th Circuit get so conservative? What changed? What happened here?

MILLHISER: So there's a few things that happened here. I mean, one is President Reagan happened. And, you know, Reagan appointed quite a few judges to the 5th Circuit. You know, both President Bushes happened. Donald Trump happened. There are 17 active judgeships on the 5th Circuit, and Donald Trump filled six of them. There is also a bit of drama within the Senate itself. Senator Patrick Leahy, who was the...

NADWORNY: From Vermont.

MILLHISER: That's right. Retiring senator - he was the chair of the Senate Judiciary Committee for most of the Obama administration. When Leahy was chair of the Judiciary Committee, he allowed home state senators to veto any person who was nominated to a district or circuit judgeship in their state.

NADWORNY: Wow.

MILLHISER: So what happened was, you know, Texas, Louisiana, Mississippi - these are the 5th Circuit states. They have Republican senators. And so they would just veto, you know, in some cases, anyone that President Obama wanted to put on the 5th Circuit.

NADWORNY: What about immigration? We know the court oversees cases out of Texas. One case in particular, United States v. Texas, involves serious questions about how the Biden administration can enforce immigration laws. Can you tell us a little bit about this case and then why it matters?

MILLHISER: There have been several cases challenging Biden's immigration policies that have come through the 5th Circuit. There was a case that went up to the Supreme Court recently involving a Trump-era program called Remain in Mexico, which said that asylum seekers have to stay on the Mexican side of the border while their case is pending. President Biden wanted to terminate that policy. His administration did everything it needed to do to terminate that policy, and the 5th Circuit said you have to keep it in place. Now, that went up to the Supreme Court. The Supreme Court said, guys, you just misread the federal immigration law. It doesn't say what you said it says. And then that case went back to one of these Texas trial judges, Matthew Kacsmaryk, who has struck it down again.

So the problem you have here is the Biden administration's just trying to do its job. You know, it has the statutory authority to decide what our border policy is. The Supreme Court said it has the statutory authority to decide what our border policy is, and yet the 5th Circuit strikes his policy down anyway. And then, even after the Supreme Court intervenes, Texas just goes back to one of its hand-picked judges, and that hand-picked judge tries to put the policy on ice again.

NADWORNY: So if a court of appeals makes the wrong decisions, there are still checks and balances, right? Like the Supreme Court - the idea is that they review the decisions of lower courts. So what do you say to those who argue that this is just how the federal courts are supposed to work in that sense?

MILLHISER: Well, it is true that the Supreme Court does frequently intervene when the 5th Circuit goes off the rails. But, I mean, frankly, it takes its sweet time when it does so. So, like, the case I told you about - the Remain in Mexico case - in July of 2021, that's when Judge Kacsmaryk, Texas' hand-picked judge, said that policy needed to be reinstated. That case went up to the Supreme Court that same July, and the Supreme Court decided to sit on its hands. And it then continued to sit on its hands for 11 months. So that was 11 months where the power to decide our immigration policy was not being made by the person we elected. It was being made by Matthew Kacsmaryk and the 5th Circuit. And there's no statute that gives them that power, and no one elected them.

NADWORNY: Yeah. So that's an example of how the 5th Circuit blocked some of President Biden's policies. But, you know, this also was kind of happening in the federal courts during the Trump era - that federal courts used injunctions to prevent certain laws from going into effect, like the so-called Muslim travel ban.

MILLHISER: Right.

NADWORNY: I mean, what do you say to people who argue, look, this happens to every president? What's the big deal?

MILLHISER: Yeah. It does happen to every president - that they have some policies, and some federal judge says, no, you can't do that. What happened during the Trump administration is that the Supreme Court was very, very quick to act when they thought that a lower judge had erred in striking down a Trump administration policy. I mean, in some cases - you know, I just wrote a piece for Vox about this. In some cases, the Trump administration would come to them and say, we need you to reinstate this policy. And eight days later, the Supreme Court would say, yes, we are going to reinstate that policy.

When the Biden administration comes to the Supreme Court and says, hey, like, what this lower court did was wrong - we need you to reinstate the policy - the Supreme Court does, you know, fairly often intervene and say, yeah, the 5th Circuit, you guys messed up here. But like I said, you know, in the Remain in Mexico case, they waited 11 months to do so.

NADWORNY: So the takeaway here is maybe the federal courts have gotten just a little out of hand.

MILLHISER: Yeah, I think that's right. I mean, just - you know, we've been talking about the 5th Circuit, which is this outlier court. But just look at all the nonsense that's been coming out of the Supreme Court lately - I mean, not just striking down Roe v. Wade, but neutralizing the Voting Rights Act, completely rewriting the law of religion, completely rewriting many of the foundational principles of how the Constitution operates. You know, judges aren't elected. I'm just a firm believer in democracy. I think that our decisions about what our policies are should be made by the people we elect to make that - those decisions - Congress and the president - and that a minimal amount of authority should be wielded by these judges who never have to stand for an election.

NADWORNY: That was Ian Millhiser, a senior correspondent at Vox. His most recent book is "The Agenda: How A Republican Supreme Court Is Shaping America." Ian, thanks so much for joining us.

MILLHISER: Thanks so much for having me. Transcript provided by NPR, Copyright NPR.