The Appeals Court Playing a Has Often Been Out of Step With the Supreme Court Notches a Victory


The appeals court that initially let an aggressive Texas immigration law come into force in a one-sentence order without a hint of reasoning — before later blocking it again in a similarly brief order — has a reputation for issuing decisions too conservative even for the Supreme Court, which is itself tilted to the right by a six-justice supermajority of Republican appointees.

The appeals court scheduled arguments for 10 a.m. Central time Wednesday on whether a trial judge’s injunction that initially blocked the law should be allowed to stay in effect throughout the federal government’s appeal, meaning Texas could not enforce it.

The fate of the law, known as S.B. 4, remains uncertain, as the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, is often out of step with the justices.

In dissent on Tuesday, Justice Sonia Sotomayor took aim at the appeals court. “The Fifth Circuit abused its discretion,” she wrote, “and this court makes the same mistake by permitting a temporary administrative stay to alter the status quo that has existed for over a century.”

She added: “The Fifth Circuit should have considered the constitutionality and irreparable harm caused by S. B. 4 before allowing the law to go into effect. Instead, it opened the door to profound disruption. This court makes the same mistake.”

Hours later, the Fifth Circuit judges dissolved the stay that had allowed the law to go into effect — for the moment.

Of the appeals court’s 17 active judges, only five were appointed by Democratic presidents. Six members of the court were appointed by Donald J. Trump when he was president.

The court hears appeals from federal trial courts in Louisiana, Mississippi and Texas. Those forums often attract ambitious lawsuits from conservative litigants correctly anticipating a favorable reception, and rulings from trial judges in those states are often affirmed by the Fifth Circuit.

But when those cases reach the Supreme Court, they sometimes fizzle out. An attack on the constitutionality of the Consumer Financial Protection Bureau, endorsed by three Trump appointees on the Fifth Circuit, did not seem to fare well before the justices when it was argued in October. Another, in which the Fifth Circuit struck down a federal law barring domestic abusers from carrying guns, was also met with skepticism.

Other rulings from the Fifth Circuit, on issues like immigration, abortion pills and so-called ghost guns, have also met with at least tentative disapproval from the Supreme Court.

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