The Left’s Lies about the Fifth Circuit’s Reversal Rate

Many court watchers are fond of observing how often the Fifth Circuit, which is notably conservative among federal appeals courts, was reversed by the Supreme Court this past term. Prominent news outlets headline that that court is “testing” (the Washington Post) or even “seems to be exasperating the Supreme Court” (CNN). Steve Vladeck dedicated an article in the Atlantic to the Fifth Circuit’s supposedly “outlandish decisions” and is already anticipating that it will be “the most-reversed appeals court at #SCOTUS” during the upcoming term.

There is frankly not much variation on this theme between law professors and the Left’s bomb-throwers, who seem almost giddy about trashing the Fifth Circuit — literally. See Mark Joseph Stern’s Slate article about “the garbage coming out of the 5th Circuit” or Elie Mystal’s X post:

Dark-money organizations like the Center for American Progress more dourly capitalize on the Fifth Circuit’s “judicial power grab.” In its chastisement of the Fifth Circuit, the Left willfully ignores the broader universe of appeals to the high court, and presents a seriously distorted picture in the process.

To be sure, there were Fifth Circuit reversals in significant cases that included a Second Amendment question and challenges to the CFPB’s funding mechanism, mifepristone regulations, and federal officials influencing social media content moderation, though the latter two cases were decided on standing rather than on substantive grounds.

In other important cases, including the vindication of Seventh Amendment rights against juryless agency adjudication and the reversal of a bureaucratic about-face on gun regulation, the Supreme Court affirmed the Fifth Circuit.

As recorded by Empirical SCOTUS last month, the Fifth Circuit was reversed or vacated nearly 73 percent or two-thirds of the time — depending on whether cases consolidated for argument or decision are counted (eleven total) or excluded (nine total) in the tally — and affirmed in the balance of merits cases. If we add to the mix the Court’s decision last week not to grant a stay of a Louisiana district court’s preliminary injunction barring enforcement of the Biden administration’s Title IX rule, the Fifth Circuit reversal rate drops to two-thirds counting consolidated cases and 60 percent not counting them.

But those numbers do not reflect anything amounting to a singular rebuke of the Fifth Circuit. The Supreme Court usually reverses lower courts — this term, it did so in more than two-thirds of its appellate decisions. And consider that this term, seven or eight (depending on methodology) of the twelve other circuit courts faced higher reversal or lower affirmance rates than the Fifth.

• The First, Fourth, Sixth, Seventh, Tenth, and Federal Circuits were reversed or vacated 100 percent of the time, albeit each with a fraction of the number of merits cases that came from the Fifth Circuit. When counting consolidated cases, the Tenth Circuit is no longer in this category as it adds an affirmance.
• The Second Circuit was reversed or vacated 86 percent of the time, amounting to one affirmance and six reversals. Five of those six reversals were decided unanimously, including a noteworthy case involving the First Amendment consequences of government bullying of the NRA.
• The District of Columbia Circuit was never affirmed over the course of four cases — seven counting consolidated cases.

Besides granting a stay against enforcement of an EPA rule where the D.C. Circuit had denied relief, the Supreme Court vacated that court in three of the most important decisions of the term: overturning Chevron deference, deciding presidential immunity, and rejecting an overly aggressive interpretation of an obstruction statute. And that tally does not include cases like Garland v. Cargill in which the D.C. Circuit was on the wrong side of a circuit split.

In the five additional appeals coming from state courts or directly from a federal district court, the Court reversed or vacated in every case.

Mainstream media’s commentary about this term — not to mention commentators who do not feign scholarly objectivity — revels in the reversals of the Fifth Circuit while ignoring the even worse record of the D.C. Circuit and other courts. The double standard in play attempts to discredit conservative judges when they are reversed, while conveniently glossing over the liberal court’s more soundly repudiated rulings. It’s the same delegitimization tactic of selective coverage used against Supreme Court justices.

For some court watchers, without double standards, they would have no standards at all.