Conservatives’ judge-shopping fast-track to the Supreme Court is running into a buzzsaw

Attempts by right-wing activists to push their extremist agenda through the courts by running down to the 5th U.S. Circuit Court of Appeals is turning out to be a bust with the Supreme Court which is overruling them at a much higher than-normal rate.

In the just concluded Supreme m Court term, the nation’s highest court — with a 6-3 conservative majority — only gave their stamp of approval to three 5th Circuit rulings out of the ten they accepted.

Speaking with Newsweek’s Katherine Fung, several legal scholars noted that it almost appears that SCOTUS is sending a message to the lower court which has been accused of being the go-to forum for judge-shopping conservatives.

According to law professor Alison LaCroix, of the University of Chicago, “It’s definitely been striking the degree to which the 5th Circuit has lost at the Supreme Court. It’s more than most other circuits, but it’s also notable because the Supreme Court doesn’t have to take any of these cases.”

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“They could decide not to review a decision from any lower court and say, ‘We’re not going to take a second look at this.’ But the fact that they take the appeals from the 5th Circuit, in many instances, has proven to mean that they want to overturn, or at least give a hard look at what the 5th Circuit’s done,” LaCroix elaborated.

Case in point: the 5th Circuit’s Judge Matthew Kacsmaryk, a Donald Trump appointee, who received a brutal smackdown from the Supreme Court over his ruling on on the abortion drug Mifepristone which was “…’swatted’ aside in a rare unanimous ruling by the conservative-majority Supreme Court.”

“In the lower courts, the case was presided over by Kacsmaryk, who issued an unprecedented injunction that suspended the drug’s approval,” noted Newsweek. “A three-judge panel on the 5th Circuit tossed out part of Kacsmaryk’s decision, acknowledging the statute of limitations to challenge the FDA’s 2000 approval had expired, but kept the part of the injunction that invalidated the changes the FDA made in 2016.”

Law professor Dan Urman of Northeastern University commented that the Supreme Court is sending a “clear message” that the 5th Circuit is going “too far in the conservative direction.”

“In the 90s and 2000s the 9th Circuit went too far in the liberal direction, and this is similar but on the other side of the ideological divide,” Urman explained.

Professor Alex Badas pointed to a distinct trend, with Newsweek reporting that “during the 2022 term, the Supreme Court overturned the 5th Circuit 62 percent of the time. The appeals court was overturned 75 percent of the time in the 2021 term, 77 percent of the time in the 2020 term and 63 percent of the term in 2019.”

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