'Where law goes to die': Legal expert buries 'Trumpy' Fifth Circuit for creating chaos

On Tuesday, writing for Vox, legal expert Ian Millhiser took a sledgehammer to the Court of Appeals for the Fifth Circuit — a judicial body serving Texas, Louisiana, and Mississippi, loaded with Trump appointees and other highly-partisan conservatives — as the place "where law goes to die" and where "Trumpy" judges routinely blow up precedent and cause chaos so severe that even the Supreme Court, itself a hard-right body, has frequently had to step in and rein them back.

"The Fifth Circuit has, in recent months, declared an entire federal agency unconstitutional and stripped another of its authority to enforce federal laws protecting investors from fraud. It permitted Texas Republicans to effectively seize control of content moderation at social media sites like Twitter, Facebook, and YouTube. Less than a year ago, the Fifth Circuit forced the Navy to deploy sailors who defied an order to take the Covid vaccine, despite the Navy’s warning that a sick service member could sideline an entire vessel or force the military to conduct a dangerous mission to extract a Navy SEAL with Covid," wrote Millhiser. "As Justice Brett Kavanaugh wrote when the Supreme Court restored the military’s command over its own personnel, the Fifth Circuit’s approach wrongly inserted the courts 'into the Navy’s chain of command, overriding military commanders’ professional military judgments.'"

"And this is just a small sample of the decisions the Fifth Circuit has handed down in 2022," wrote Millhiser. "Go back just a little further, and you’ll find things like a decision endangering the First Amendment right to protest, or another that seized control over much of the United States’ diplomatic relations with the nation of Mexico. In 2019, seven Fifth Circuit judges joined an opinion that, had it been embraced by the Supreme Court, could have triggered a global economic depression unlike any since the 1930s. Its judges embrace embarrassing legal theories, and flirt with long discredited ideas — such as the since-overruled 1918 Supreme Court decision declaring federal child labor laws unconstitutional. They abuse litigants and even each other. During a 2011 oral argument, the Court’s then-chief judge, Edith Jones, told one of her few left-leaning colleagues to 'shut up.'"

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One of the most egregious decisions made by this court, wrote Millhiser, is their attempt to shut down Taylor v. Stevens, a case where a prisoner was held in a psychiatric cell for four days with the floor caked in human feces, and where he was then moved into a cell with no toilet, water fountain, or bed, where he was forced to relieve himself on the floor in a cloud of ammonia fumes from a stopped drain.

"The Supreme Court eventually ruled 7–1 that Taylor’s lawsuit against the corrections officers who forced him to live in these conditions could move forward, and that lawsuit settled last February. But the Supreme Court had to intervene after an even more conservative court, the United States Court of Appeals for the Fifth Circuit, attempted to shut down these claims against the prison guards," said the report. "A unanimous panel of three Fifth Circuit judges held that it was unclear whether the Constitution prevents prisoners from being forced to remain in 'extremely dirty cells for only six days' — although, in what counts as an act of mercy in the Fifth Circuit, the panel did concede that 'prisoners couldn’t be housed in cells teeming with human waste for months on end.'"

Former President Donald Trump nominated a large number of judges to the lower courts, including several Fifth Circuit judges. President Joe Biden has exceeded his predecessor's pace for nominations, however, and earlier this month made history by securing the Senate confirmation of Dana Douglas, the first Black woman to be named to the Fifth Circuit.