Here’s the latest on the First Amendment case.
The appeals court that partially upheld limits on the Biden administration’s communications with social media companies has a reputation for making decisions that are too conservative for the Supreme Court, which itself has been tilted to the right by a supermajority of six Republican candidates .
Of the seventeen active appeals court judges, only five were appointed by Democratic presidents. Six members of the court were appointed by President Donald J. Trump.
The court, the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, hears appeals from federal courts in Louisiana, Mississippi and Texas. These forums often elicit ambitious lawsuits from conservative litigants who rightly anticipate a favorable reception, and rulings by judges in those states are often affirmed by the Fifth Circuit.
But when those cases reach the Supreme Court, they sometimes fizzle out. An attack on the constitutionality of the Consumer Financial Protection Bureau, endorsed by three Trump appointees in the Fifth Circuit, did not appear to go down well with the justices when it was debated in October. Another, in which the Fifth Circuit struck down a federal law banning domestic abusers from carrying guns, was also met with skepticism.
Other Fifth Circuit rulings, on issues such as immigration, abortion pills and so-called ghost guns, also drew at least cautious disapproval from the Supreme Court, indicating that the appeals court is out of step with the justices.
At a news briefing in September, Irv Gornstein, executive director of the Supreme Court Institute in Georgetown, said the Fifth Circuit had taken positions that “at least some of the central bloc of conservatives will not be able to tolerate.”
He added that some of the Fifth Circuit’s rulings “came out of Crazy Town” and that “it would be shocking if at least some of those decisions are not reversed.”