Conservative Fifth Circuit’s 2023 Rulings Test Supreme Court

The US Court of Appeals for the Fifth Circuit has issued several decisions this year that have touched on hot-button issues—and caught the attention of the US Supreme Court.

The Fifth Circuit has become a magnet for conservative challenges against Biden administration policies, as both the appeals court and the trial courts in its jurisdiction feature a significant number of Donald Trump’s appointees. And some of its rulings have been narrowed by the US Supreme Court, even as the conservative justices there hold a super-majority.

Here’s a review of some of the Fifth Circuit’s most high-profile rulings in 2023.

Gun Ban

A Fifth Circuit panel in February ruled that a law banning people subject to domestic violence restraining orders from owning guns is unconstitutional. Judge Cory Wilson, a Trump appointee, wrote the majority opinion, joined by fellow Trump appointee James Ho and Edith Jones, nominated by Ronald Reagan.

Wilson wrote that, under the US Supreme Court’s decision in in N.Y. State Rifle & Pistol Ass’n Inc. v. Bruen, which called for courts to weigh both the text of the Second Amendment and the country’s history, the restriction on those accused of domestic abuse isn’t consistent with the country’s “historical tradition of firearm regulation.”

In a concurring opinion, Ho wrote that “respect for the Second Amendment is entirely compatible with respect for our profound societal interest in protecting citizens from violent criminals.”

The US Supreme Court is now reviewing the Fifth Circuit panel’s decision. During oral arguments in November, the justices seemed wary of affirming the ruling.

Social Media

The Fifth Circuit in the fall issued rulings blocking Biden administration officials from encouraging social media companies to moderate content on their platforms. The opinions reversed some injunctions placed by a lower court against government officials, but left others in place.

In September, a panel of conservative judges found that government officials had “engaged in a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavored by the government.” The case related to “divisive” posts made about Covid-19, election fraud, and Hunter Biden’s laptop.

Judges Don Willett, Jennifer Walker Elrod and Edith Brown Clement withdrew that decision and later issued an amended ruling, adding another federal agency to those blocked from contacting the social media platforms.

The Justice Department has argued that the appeals court “imposed unprecedented limits” on the abilities of top Biden aides “to address matters of public concern, on the FBI’s ability to address threats to the Nation’s security, and on the CDC’s ability to relay public health information at platforms’ request.” The US Supreme Court has since lifted those blocks and agreed to hear the case.

Abortion Medication

A Fifth Circuit panel in August kept part of a lower court ruling in place that would limit access to the abortion pill mifepristone.

Judges Jennifer Walker Elrod and Cory Wilson said in the majority opinion that while it was likely too late to cancel the Food and Drug Administration’s 2000 approval of the medication, some restrictions should be put in place.

Judge James Ho dissented in part, saying the court should have affirmed a ruling from US District Judge Matthew Kacsmaryk that blocked the approval of the medication.

The US Supreme Court has said it will also hear this case, the latest high-profile legal dispute on its calendar stemming from the Fifth Circuit.