The Normalization of Extremism as The Mandate for Everyone

 

The Normalization of Extremism as The Mandate for Everyone

Manipulating, Forum Shopping and Intimidating as Standard Political Tools

If you want proof of the power of federal judicial appointments, look no farther than the New Orleans-based Fifth Circuit U.S. Court of Appeals, with jurisdiction over federal trial courts in Texas, Louisiana and Mississippi. For issue-oriented forum shoppers, there is no more friendly a federal appellate court for plaintiffs and their attorneys looking to repeal liberal decisions and impose MAGA doctrine instead. We already know of the smaller federal judicial districts, where due to the small number of available trial judges, plaintiffs are likely to see MAGA results – like Alliance for Hippocratic Medicine vs US FDA (Ultra-conservative Trump appointee, US District Judge Matthew Kacsmaryk presiding), a North Texas federal court which reversed the decades-long FDA approved use of the mifepristone abortion pill that had been approved by other federal courts. But that “forum shopping” might also apply to appellate courts, most notably the above-noted Fifth Circuit. Double coverage for MAGA advocates.

The latest “we do not care what other federal appellate courts may have done, but it’s not our MAGA way” Fifth Circuit decision, on July 24th, contradicted three other federal appellate courts that reached the opposite conclusion. The full panel of the Fifth Circuit (en banc in Consumers’ Research vs FCC) ruled 9 to 7 that an FCC approved system for subsidizing telecommunications service for rural and low-income users as unconstitutional.

This rightwing federal appellate court does not have a good track record on its cases when subsequently considered by what most people view as the most conservative US Supreme Court in modern history. Judging by the results, the Fifth Circuit is a rightwing litigant’s dream appellate venue. But of the 13 cases that moved to the US Supreme Court from this circuit this term, three were upheld and eight were reversed or remanded for reconsideration to the lower courts. The worst appellate track record of any federal appellate circuit this year.

How conservative is the Fifth Circuit? According to the July 2nd Texas Tribune: “Justice Brett Kavanaugh cautioned that the 5th Circuit was taking the judiciary down ‘an uncharted path.’ Chief Justice John Roberts said they were ‘slaying a straw man.’ [A marginal intermediary set up for the purpose of the case]. Justice Clarence Thomas, the most conservative member of the court, authored two opinions rejecting the 5th Circuit’s interpretation of the law.

“The New Orleans-based 5th Circuit leaned to the right even before President Donald Trump appointed six judges to the bench. The new judges, many of whom trained in Texas’ conservative legal circles, have attracted a slew of ideologically-aligned cases… ‘One of the most conservative Supreme Courts we've ever had is still repudiating right-leaning decisions from the most conservative appeals courts in the country,’ said Steve Vladeck, a law professor at Georgetown University. ‘But even then, it’s doing so in cases that should never have gotten to the Supreme Court in the first place.’

“Just because these rulings ultimately got knocked down at the Supreme Court doesn’t mean the 5th Circuit is toothless, Vladeck said… ‘These rulings have the effect of taking legal theories that were off the wall, and putting them on the wall,’ he said. ‘Even when they’re losing, the effect is to make these cases of national import and give credibility to those arguments.’”

We’ve seen this process at work in Florida Federal District Court judge Aileen Cannon’s recent dismissal of the entire criminal case over Donald Trump alleged mishandling of classified documents. Her ruling was predicated on a dissent by Justice Clarence Thomas, on an issue that wasn’t even before the court in the Trump presidential immunity decision: he questioned whether a special counsel not confirmed by the Senate should be allowed to prosecute a case. Despite decades of precedents. So, these cases matter!

So many of the cases brought up on appeal emanate from these ultra-rightwing, often rogue, federal trial courts: “The story of how the 5th Circuit comes to rule on so many conservative cases starts far away from the John Minor Wisdom federal courthouse in New Orleans. It starts in a handful of district courts in remote parts of the three-state region, where, due to geography and population distribution, only one federal judge hears all or nearly all of the cases…

“In its first abortion ruling [the above noted Alliance for Hippocratic Medicine] after overturning Roe v. Wade, the Supreme Court unanimously rejected the 5th Circuit’s ruling and found the doctors who sued did not have standing. Justice Kavanaugh, a Trump appointee, quoted conservative legal icon Justice Antonin Scalia in authoring the opinion…. ‘As Justice Scalia memorably said, [standing] requires a plaintiff to first answer a basic question: ‘What’s it to you?’ ’ Kavanaugh wrote. ‘For a plaintiff to get in the federal courthouse door and obtain a judicial determination of what the governing law is, the plaintiff cannot be a mere bystander, but instead must have a ‘personal stake’ in the dispute.’

“The 5th Circuit was advancing an ‘unprecedented and limitless approach’ to standing, Kavanaugh wrote, which would ‘seemingly not end until virtually every citizen had standing to challenge virtually every government action that they do not like.’… [continuing] ‘Citizens and doctors who object to what the law allows others to do may always take their concerns to the Executive and Legislative Branches and seek greater regulatory or legislative restrictions on certain activities’… .

“Justice Amy Coney Barrett, another Trump appointee, similarly chided the 5th Circuit for its interpretation of standing on a Louisiana case, Murthy v. Missouri. In that case, the attorneys general of Louisiana and Missouri and five individuals accused the Biden administration of pressuring social media companies to censor information during COVID. They filed the lawsuit in Monroe, Louisiana, a city of 47,000 people, where Trump-appointed Judge Terry Doughty hears most cases… Doughty ruled that the plaintiffs had standing, and the 5th Circuit agreed. Barrett, on behalf of the Supreme Court, did not.

“‘This theory is startlingly broad, as it would grant all social-media users the right to sue over someone else’s censorship — at least so long as they claim an interest in that person’s speech,’ Barrett wrote. ‘This Court has never accepted such a boundless theory of standing.’”… ‘These are lawsuits that should never have been lawsuits,’ Vladeck said. ‘By holding that these plaintiffs do have standing, the 5th Circuit is allowing the federal courts to decide cases they have no business deciding.’” Texas Tribune. In my mind’s eye, the most powerful action by a US president, beyond ordering a military strike, is the appointment – each for a lifetime!!! – of federal judges.

I’m Peter Dekom, and if having these anti-democratic judges slowly erode the US Constitution is your cup of tea, Trump is your man!