AFJ releases a new report on the court that hears appeals in Texas, Louisiana and Mississippi

Last week’s decision by the Fifth Circuit Court of Appeals to reinstate Texas’ draconian abortion law can be described in many ways—shocking, appalling, disturbing, unjust, and a vital reminder of how much judges matter—but no one familiar with the Fifth Circuit should be surprised.

As Alliance for Justice explains in a new report profiling the court’s 15 judges.

Ten of its 15 active judges were appointed by Republican Presidents, and its decisions often reflect a concerted effort by Republican administrations to impose a conservative policy agenda through the courts.

That agenda shows itself in all sorts of ways, including decisions favoring powerful special interests at the expense of everyday Americans.   Among the examples cited in the report:

After a group of Hurricane Katrina victims received a favorable ruling from a three-judge panel in their suit against polluter energy companies, the court decided to hear the case “en banc”—meaning that the panel decision would be vacated and the court’s full roster of judges would decide the case. But because ties to the energy industry forced so many judges to recuse themselves, there weren’t enough judges left to hear the appeal. The result was that the hurricane victims lost without ever getting their day in court. Their favorable panel decision had already been set aside, and the lost quorum meant that the trial court’s decision—which sided with the energy companies—was reinstated.

The court’s decisions have also eroded civil rights, marginalized criminal defendants, and demonstrated insensitivity and even outright hostility toward racial minorities and women.

As the report documents, last week’s abortion law decision was only the most recent example.

The Fifth Circuit judges

The Fifth Circuit Court of Appeals has appellate jurisdiction over the federal courts in Texas, Louisiana, and Mississippi. It often has the last word on questions of federal law, so it’s imperative that the court is staffed with fair-minded judges who uphold the rule of law and treat all litigants equally.  Here are some examples, culled from the report, of what we are getting instead:

● A high school cheerleader is raped, allegedly by a member of the school basketball team. The school then forces her to cheer for the alleged rapist. She sues, arguing the school’s actions violated her First Amendment rights. In a decision written by Judge Edith Brown Clement, the Fifth Circuit not only dismisses the claim, but it orders the rape victim to pay legal fees for filing a “frivolous” suit.

Judge Priscilla Owen, who wrote the opinion reinstating the Texas abortion restrictions law, has a history of anti-abortion activism. Consider what happened when Owen and Alberto Gonzalez—a man with such stellar conservative credentials that he would go on to serve as President George W. Bush’s attorney general—both were serving on the Texas Supreme Court: Owen and other dissenters tried to impose restrictions on minors seeking abortions that were even more severe than those permitted under state law. Their views prompted Gonzalez to accuse them of committing “an unconscionable act of judicial activism.”

Owen had far more sympathy for corporations like Enron. She wrote an opinion cutting Enron’s school taxes by $15 million—after accepting thousands of dollars in campaign contributions from Enron.

● In 2009, Judge E. Grady Jolly attended a conference on the so-called “criminalization of corporate conduct” sponsored by the American Petroleum Institute and the U.S. Chamber of Commerce. Three years later, he ruled in favor of two organizations suing to invalidate a decision by the Environmental Protection Agency. The organizations were the American Petroleum Institute and the U.S. Chamber of Commerce.

Judge W. Eugene Davis and Judge Jerry Smith have attended seminars funded by the so-called Foundation for Research on Economics and Environment (FREE), an anti-regulation think tank funded by the oil industry. Only months after the Deepwater Horizon disaster, these judges ruled in favor of oil companies challenging the president’s partial moratorium on offshore drilling in the Gulf. (Judge Clement goes them one better—or one worse. She actually serves on the board of FREE—despite an opinion by the Judicial Conference’s Committee on Codes of Conduct that it is an ethics violation to do so.) Judge Smith also was one of the Fifth Circuit judges who rejected an ineffective assistance of counsel claim. He apparently felt it was no big deal that the lawyer in question slept through key parts of a capital murder trial.

● Perhaps the most notorious judge on this court is Edith Jones. She’s taken it upon herself to urge the Supreme Court to overturn Roe v. Wade and criticized the Supreme Court for “struggl[ing] with the particular facts … of death penalty cases.” But that’s just the tip of the iceberg. She is the subject of a formal complaint from ethics experts and civil rights organizations alleging, among other things, that she made overtly racist remarks during a speech on the death penalty. Full details are in this previous post to Justice Watch.

Of course not all the judges are like this. But fair-minded Fifth Circuit judges like James Dennis often must write in dissent, as Judge Dennis did when the majority wrote a decision declaring that undocumented immigrants don’t have fundamental constitutional rights because they are not “people.” And President Obama had to nominate Judge James Graves twice before winning confirmation; the first time the nomination was stalled by Senate Republicans.