Dampening The Fire On The Fifth Circuit

Workplaces don’t stay the same. Over the years, different leadership styles have changed over time. Organisations undergo restructuring. People who are not productive will either be fired or asked to go. The organization is reenergized with new talent. The organization may also become disfunctible if it fails to meet its goals.

The federal courts of appels do not have to follow these rules. The majority of their members are static. Senior judges stay on the job longer, but new judges are often added to the panel. Leaders are not available. (The chief judge is not included). Each member of court is entitled to an equal vote. Unhappy judges are rarely expelled from their lives-long sinecures. Final word: Federal courts can’t all be abolished. Because of their unique nature, the federal courts are able to create interpersonal relationships that differ from those in other workplaces.

This principle came to my mind after I read the Fifth Circuit’s recent decision. Sambrano v. United Airlines. Three prominent conservative judges from Texas were appointed to the all-Texas panel by three Presidents in three decades. Judge Jerry Smith was appointed by President Reagan, Judge Jennifer Walker Elrod by President W. Bush, and Judge Andy Oldham by President Trump. It was a case that raised a major issue. Can a private employer force employees to get vaccinated. It was a simple legal question: Could a Federal Court issue a Title VII preliminary injunction? This question was also addressed by me here.

Judges Elrod & Oldham wrote per curiam opinions, concluding that a preliminary order was possible. Judge Smith dissents, saying that the preliminary injunction is not permitted. However, Judge Smith’s disapproval went beyond disagreement about legal principles. His dissent seems to go much further than simply disagreeing about the legal principles.

The FirstSmith suggests at several points that Elrod or Oldham may have distorted the law to get their desired outcome.

These facts are very rare in majority opinions. These facts would be a hindrance to a Great story.

If I had known better I would have guessed that the majority hadn’t read the brief of the plaintiffs.

The majority of people abandons the precedent to obtain the It is important to answer its questions.

Smith claims that Smith’s colleagues have twisted the law in order to get a result that conservatives favor. According to Smith, judges are motivated by a particular cause or a satisfying result.

Again, the majority ignores the Supreme Court’s request to rewrite the law for these plaintiffs. Favorite cause.

41 I couldn’t see any reason why the majority would select orderly,41 however every mistake pointing to the same result as my colleagues was obvious. Most satisfying.

Smith states that the decision will be popular in some quarters.

Instead, the bigger threat is the use of a new decisionmaking process that reaches a result which—while unavailable under established law—will prove Popular in certain quarters.

some quartersAlthough it might seem harmless enough to agree with the majority’s approach (i.e. announcing major rulings and unpublished opinions in this important case),

Commonly, a decision is described as a ticket valid for one ride. Judge Smith, however, adds an extra layer of grease to this “blueplate special.”

This I call the “one and done” method of decisionmaking. Two judges randomly selected for a panel decide that—for whatever reason—a particular result is correct but can be achieved only by divorcing the opinion from the common-law tradition, by evading precedent, and by obscuring the path in the shroud of an unpublished per curiam opinion. This is the obvious outcome.

Smith doesn’t just criticize his coworkers. Smith is not content to criticize his colleagues.

This panel’s ruling gives the panel majority permission to grant any leave. loose-cannon district judge[FN 96]an upcoming majority of Two Fifth Circuit judges to determine that the cause is so strong that the law cannot be ignored, and we will come up with a solution.

[FN 96]If today’s circuit does not have any district judges, One day jurists might existThey are happy to see that the Fifth Circuit and Supreme Court precedents of which they don’t like need not be used.

Although I believe he is thinking about Judge Reed O’Connor, there may also be some other recently appointed members of the club. In the ACA Case that was decided by Judge Smith, he would have allowed rehearing en bloc. California v. Texas. (Judge Smith has some experience with Obamacare).

SecondSmith suggested Elrod and Oldham were being led away by “zealous law clerks”.

It’s difficult to imagine what creative lawyers—not to mention federal judges spurred on by zealous law clerks—will do with these new tools.

On the left, this trope is all too common. Joe Patrice is at Above The Law.

But perhaps [Smith’s]He is most insightful in his observation of the FedSoc clerkship pipeline. . . . FedSoc sends out ideologues that push judges rightward as clerks. Those clerks then become judges.

Joe Patrice would find it “insightful” and I would be willing to second-guess everything I have written.

Two federal judges were my clerks, so I am familiar with the opinions of many others. With a high degree of certainty I can state that Judges Elrod & Oldham do not have their law clerks to guide them. Law clerks will pitch ideas to judges, it is no secret. However, the judge will have the final word. As a clerk, I submitted a draft of my dissent to the judge. It contained some extremely sharp points. The draft was never reviewed by me. Later I found out that the judge had rejected my draft and submitted his own opinion. This is life as a law clerk. There are many stories about Supreme Court justices who allowed law clerks to manage the proceedings. Justices Douglas and Blackmun spring to mind. It is unlikely that Elrod or Oldham would be in this state.

It’s also offensive to claim that the federal judges in this case are inferior to law-school graduates. This kind of barbs will unnecessarily raise the court’s temperature and put a pall upon it. All Law clerks include Judge Smith’s. This is a good idea to keep the law clerks away from these conflicts. These issues can be discussed at conference or by Bourbon Street judges. These issues are not addressed in court decisions.

TroisièmeJudge Smith set off a flare above the Gulf of Mexico.

Unpublished opinions are just one reason why you should vote against en banc scrutiny. The Good Ship Fifth Circuit has been set ablaze by today’s decision. It is urgent that all hands be on board.

Smith tried to be kind and soften his feelings by suggesting that his “conscientious colleagues” were “well intentioned”.

Alleging “ongoing coercion” now supplies a private right to preliminary injunctive relief—not because of text, history, or precedent, but because two well-intentionedBut, judges who are not properly trained say otherwise.

With what I am certain are the best, they make up the majority. Healthy intentionsThe law is changed in one time, which affects both the facts, the text, the history, and the precedent.

These are not personal comments on my two. conscientiousPanelists who are trustworthy, dedicated, and skilled. This is why we have three panels, which allows for open discussion on all matters.

These caveats were largely ineffective for me. Smith would have held such sentiments and his sixty-page distinction wouldn’t have been blasted with ad hominem attacks. Judge Smith helps to put out the flames of the Good Ship Fifth Circuit. Every member of the court needs to take a moment and slow down the flames. All of them will be on the court for quite some time, but they’ll soon all feel lifted by the rising tide.