Backstory: The Fifth Circuit Wasn't Always the Most Conservative Court Around

These days the Fifth Circuit Court of Appeals can generally be counted on for issuing decisions that are so far right they're practically left. They've made headlines numerous times in the last three months for their decisions on abortion law alone. There are conservative courts in the United States, but the calling the Fifth Circuit conservative is like calling a unicorn a pony: it's kind of accurate but it couldn't possibly cover the horned grandeur that is the Fifth. It wasn't always thus.

So what is the Fifth Circuit anyway? The Fifth Circuit is a court comprised of 15 active judges based in New Orleans with a jurisdiction covering Texas, Louisiana and Mississippi. Most of the judges are Southern Republicans, which is a key point here.

Come January, the Fifth Circuit is slated to ramp it up and finally hear cases on Texas court decisions regarding gay marriage and House Bill 2, the law that has forced most of the abortion clinics in the state to close, and with the current court makeup, only the most quixotic of gamblers would try and bet on the Fifth ruling against either. The court has been dragging its feet on actually hearing both of these cases, despite the fact that the odds are good that the Southern Republican block will come down against both issues with the force of the hand of God.

This isn't the first time that a bunch of Southern Republicans made sweeping decisions on this circuit court. The court has been around for a while. It was created by the Evarts Act in 1891 (the act both created the appeals courts and allowed Supreme Court judges to stop actually riding the circuit to hear cases across the country.) The appeals court deals with the appealed cases that have bounced up through the court system. But things didn't really get interesting until a crew of Southern (mostly) Republicans landed on the court.

Once upon a time, way back in the 1950s and 60s, the Fifth Circuit had a reputation that took it to the other side of the political spectrum, i.e. it was super liberal. Back then the Fifth was home to a crew of judges known as the Fifth Circuit Four (kind of like the Fab Four if the Beatles had been judges). Primarily due to the efforts of these four judges, the Fifth made several key rulings on the Civil Rights movement.

Back then the Supreme Court had shied away from issuing rulings that would force more rapid change on things like school integration, but the Fifth Four had no such hesitations. Where the Supreme Court's ruling on Brown v. Board of Education simply ruled that school integration should take place, the Fifth's ruling on U.S. v. Jefferson County School Board put the whole thing on a timetable so that it would actually be done.

The Fifth Four were so well known they even made Time magazine. Their rulings led Time to write this about the court back in 1964:

Apart from the Supreme Court, the most fascinating bench in the U.S. is the Deep South's Fifth Circuit Court of Appeals -- the trail-blazing intermediate court that handles most of the nation's civil rights cases by hearing appeals from district courts in Alabama, Florida, Georgia, Texas, Louisiana and Mississippi. "Without the Fifth Circuit," says a leading civil rights lawyer, "we would be on the verge of actual war fare in the South."

The Fifth Four included Judge Elbert Tuttle, a liberal Republican from Georgia, chief justice of the court, Judge John Brown, Republican, Judge Richard Rives, Democrat, and Judge John Minor Wisdom, Republican. They issued key rulings on civil rights cases that ultimately propelled the whole civil rights movement forward (even after the Supreme Court had tacitly declined to do likewise.) Wisdom penned the following in the majority opinion for U.S. vs. Jefferson County Board of Education:

"The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate government purpose."

In short, the Fifth Four were super liberal, incredibly influential and rockstars of the judicial system for a long while. But all things must eventually come to an end, and so with the days of the Fifth Four. The Fifth Circuit Court of today bares little resemblance to the court of way back when, but in the grand irony that is politics, the court is still being held hostage by Southern Republicans. Technically.

The main reason behind this is a pretty simple one. The court is ruled by Republicans, but the modern Republican is a creature that the Fifth Circuit Four would likely not recognize as kin (the modern types being socially and fiscally conservative, and having a preoccupation with where exactly in Kenya President Obama was born and why Obamacare sucks.)

The bulk of the judges currently on the court were appointed by Republican presidents, and most of those Republican appointees were put on the court by former President George W. Bush. He managed to appoint six justices to the court in his eight years in office, and those justices in particular have become stars in the conservative legal world. (Rumor has it he also considered appointing Judge Edith Jones, one of the most controversial judges on the Fifth, to the U.S. Supreme Court.)

We owe the current court roster to four of the last sitting presidents. Specifically:

Reagan appointed Jones and Houston's own Judge Jerry Smith, Judge E. Grady Jolly and Judge W. Eugene Davis. (Yep, we can thank him for both Jones and Smith.)

Clinton appointed Chief Justice Carl Stewart and Judge James Dennis.

W also appointed (here we go) Judge Edith Brown Clements, Judge Edward Prado, Judge Priscilla Owen, Judge Jennifer Walker Elrod, Judge Leslie Southwick and Judge Catharina Haynes. (To his credit, the majority of his appointees were women, albeit extremely conservative ones.)

Obama appointed Judge Stephen Higginson, Judge Gregg Costa and Judge James Graves. There are two vacancies right now which Obama should technically get to fill. However, considering Republicans hold the House and Senate now, we're wondering how he'll manage to get any judges confirmed in the next two years.

The modern version of this appellate court -- the court that W built, if you will -- has issued some darling decisions in recent years. There was the one where the court sided against a cheerleader who refused to cheer for the guy she said had raped her. The court almost never finds anyone too mentally disabled for execution. The court's hardly ever met a law restricting abortion that it didn't like. It leans heavily in favor of all things oil industry and generally (but not always) can be counted on to vote the way Fox News pundits would prefer.

The judicial Southern Republican has sure gone through some changes over the years.

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Dianna Wray is a nationally award-winning journalist. Born and raised in Houston, she writes about everything from NASA to oil to horse races.
Contact: Dianna Wray