OPINION | The 5th Circuit is even more radical than the Supreme Court’s conservatives

In one of those cases, the Fifth Circuit Court of Appeals upheld a nationwide injunction on the widely condemned abortion drug mifepristone issued last year by U.S. District Judge Matthew Kacsmarik, an abortion-rights foe appointed by Donald Trump, a ruling far too harsh even for the most right-leaning Supreme Court in our lifetime. Unanimously On June 13, the court sharply rebuked the Fifth Circuit for allowing the lawsuit to proceed. The court ruled that there was no “case or controversy” because the doctors’ group had not shown any damages.

Judge Brett M. Kavanaugh, a Trump appointee, also ruled that the case wasn’t even a lawsuit, or at least not a legal one.

Here, the plaintiff physicians and medical associations are unregulated parties seeking to challenge FDA’s regulation of others. Specifically, FDA’s regulations apply to physicians who prescribe mifepristone and to pregnant women who take mifepristone. But the plaintiff physicians and medical associations do not prescribe or use mifepristone. … And the FDA has not required the plaintiffs to do or refrain from doing anything.

Plaintiffs have not alleged the types of damages described above that unregulated parties may assert to prove causation. Because Plaintiffs do not prescribe, manufacture, sell, or advertise mifepristone or sponsor competing drugs, they have not suffered direct monetary damages as a result of FDA’s mifepristone deregulation actions, nor have Plaintiffs’ property or property values ​​been harmed by FDA’s actions. Because Plaintiffs do not use mifepristone, Plaintiffs will not necessarily suffer physical injury as a result of FDA’s mifepristone deregulation actions.

Any first-year law student could figure out that they lacked standing to sue, but the Fifth Circuit’s decision to allow any and all outlandish lawsuits to pursue MAGA political aims knows no bounds.

The second outrageous recent case from the Fifth Circuit that the Supreme Court ruled on Wednesday was Murthy v. MissouriPopularly referred to as the “flattery incident,” the case primarily revolves around the Biden administration’s concerns about coronavirus disinformation.

Justice Amy Coney Barrett, who wrote the majority opinion, explained that the agency had “communicated extensively with the platforms about their content moderation efforts” to address life-threatening messages that could conceivably lead to an increase in coronavirus infections and deaths. The government did not take retaliatory action. Any The federal government can take no action beyond talking to these companies. Nevertheless, lower courts issued unreasonable nationwide injunctions, upheld by the Fifth Circuit, that blocked the entire federal government from engaging in any significant or consistent communication with social media companies.

This lawsuit should never have been filed in the first place; since the plaintiffs suffered no harm, they have no standing or cause to sue. Worse, Barrett accused the lower courts of whitewashing the facts (“The Fifth Circuit relied on the district court’s factual findings, many of which unfortunately appear to be plainly incorrect”). For example, she wrote:

Recall the Fifth Circuit’s reasoning about the traceability of past harm: In the face of a government “pressure campaign,” “platforms’ decisions to censor are based, at least in part, on the [their] “They were unwilling to risk the adverse legal or regulatory consequences that could result from refusing to follow government guidance”…But in the months leading up to this lawsuit, these officials never issued any guidance or threatened any consequences; they simply asked for information about the most popular vaccine-related posts.

In short, the Fifth Circuit decided on its own time, issued an overly broad injunction, and indulged in a bizarre new theory (the “right to be heard”) that Judge Barrett rejected. “The theory is astonishingly broad, giving all social media users a right to sue against the censorship of others, at least to the extent that they claim to have an interest in that person’s speech,” Judge Barrett wrote. “This Court has ‘never embraced a more open-ended litigation theory.'”

Barrett, another Trump appointee, was forced to conclude that “Plaintiffs are seeking to investigate communications between dozens of federal employees across agencies, across social media platforms, and across a variety of topics over a period of years, despite the absence of a tangible connection between Defendants’ conduct and the harm suffered by their victims.” She added that “this Court’s standing principles do not permit us to exercise our right not to sue.”[ing such] “‘General legal oversight’ over other branches of government.”

Steve Vladeck, a legal scholar and expert on the Fifth Circuit, summarized the two cases as follows:

Even before these two ludicrous incidents occurred, Vladeck wrote in November of last year:

A class action lawsuit has devolved into a three-judge dispute on the meaning of a Bible verse. In one case, the Fifth Circuit allowed three doctors to sue the FDA over a tweet that was meant to discourage the use of ivermectin: “You’re not a horse. You’re not a cow. Seriously, guys. Stop it.” In another case, the Fifth Circuit barred the Biden administration from mandating COVID vaccinations for Navy SEALs, because the court’s ideas about religious freedom trump the military’s need to keep its frontline soldiers healthy. In another case, the Fifth Circuit found that the way Congress funds the Consumer Financial Protection Bureau (a mechanism Congress has used regularly since the founding of the United States) is unconstitutional because Congress merely capped the budget rather than setting a precise amount. The Fifth Circuit has repeatedly implied that individual district judges, not the Biden administration, are better placed to oversee and guide federal immigration policy. So… you get the idea. When the hosts of the popular podcast “Strict Scrutiny” spent an entire hour-long episode pointing out a particularly problematic decision from the Fifth Circuit Court of Appeals, they ran out of time.

The Fifth Circuit’s tolerance for legal insanity has led right-wing interests (which Sen. Sheldon Whitehouse (D) calls dark money groups backed by “creepy billionaires”) to hunt for judges on the Fifth Circuit. They usually get what they want. Even if a percentage of these cases are ultimately overturned, they’ve scored a temporary victory for MAGA supporters and wealthy donors. And, of course, the Supreme Court can’t hear every case. Some of these bizarre decisions will remain in place, polluting the legal system and causing havoc for millions of people.

Moreover, as a result of the Supreme Court’s outrageous decision on Friday to impose on itself the right to interpret regulatory reasonableness and make life-changing decisions about a wide range of issues (water, workplace safety, climate change, etc.), the Fifth Circuit Court of Appeals will undoubtedly be busy enthusiastically striking down regulation after regulation. The same court that handed down the above decisions may soon be deciding the safety of your water and workplace.

The Supreme Court has been criticized for sacrificing credibility on the altar of MAGA partisanship, with the result that “while 7 in 10 Americans believe Supreme Court justices are influenced by ideology, only about 3 in 10 American adults believe justices are likely to serve as an independent check on the other branches of government by being fair and impartial, according to an Associated Press-NORC Center for Public Policy Research poll,” reports the Associated Press. But the 5th Circuit’s actions are a reminder that the crisis in credibility of the federal judiciary is not just a problem at the Supreme Court level.

With the Fifth Circuit Court of Appeals becoming the laughing stock of federal courts, and figures like U.S. District Judge Eileen M. Cannon (whose colleagues have begged her to throw out a lawsuit over President Trump’s mishandling of classified documents), the entire federal judiciary is at a tipping point.

Four more years of President Biden (whose 200 appointees are notable for their diversity and qualifications) would help halt further erosion of the court’s integrity. But four more years of appointees by felon and former president Donald Trump would turn even more circuits into Fifth Circuits and even more lower courts into Canon Courts. The November vote will determine the survival of an independent and respected judiciary.