Taking (on) the 5th: 'Most conservative' appeals court rocks Supreme Court's 2023 docket

Yet the New Orleans-based court has been the driving force behind many of the big issues the Supreme Court has confronted over the last five years.

“The 5th Circuit, whether you love it or hate it, is providing a service to the nation,” said Curt Levey, president of the Committee for Justice. “These are all important issues the [Supreme] Court should hear.” “Standing appropriations aren’t per se unconstitutional,” said Justice Amy Coney Barrett, a Trump appointee.

Because the Supreme Court doesn’t take every appeal, most of the heavy legal lifting is done in the circuit courts. The structure of lower courts in the 5th Circuit, particularly in Texas, allows plaintiffs to “judge-shop” — search for a court to file a lawsuit knowing they have a good chance of ending up with a particular judge.

“There were several abortion petitions out there but the [5th Circuit] judges spotlit the abortion issue for the justices in their decision. The way that [the 5th Circuit] judges frame the issues might also help the justices see why such cases are important, especially as the judges bring constitutional elements into cases which naturally lend well to [Supreme Court] review,” Mr. Feldman said.

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