Conservative Appeals Court Is Prime Venue for Biden-Era Litigation

Mr. Paxton already was part of a successful effort to block the administration’s planned rollback of a Trump-era immigration policy on U.S. asylum seekers, and he has sued the Biden administration on issues including energy, coronavirus aid, Medicaid and gender-identity policies in the workplace.

In the abortion case, it was the federal government that stepped in to sue Texas, arguing the state’s ban on abortions after about six weeks of pregnancy was in open defiance of established constitutional rights. The Justice Department won an initial ruling from a federal judge in Austin, but the Fifth Circuit blocked that ruling and issued a brief written order suggesting there were problems with the department’s lawsuit.

The Fifth Circuit’s role as a central venue for Republican litigation in many ways mirrors the role of the Ninth U.S. Circuit Court of Appeals during the Trump administration. California’s attorney general, other Democrats and civil-liberties groups bringing legal challenges against Mr. Trump’s treatment of immigrants, his travel ban and his plans to build a southern-border wall often filed them in Northern California. They eventually went through the Ninth Circuit, which has a reputation as the nation’s most liberal appeals court.

“Given that Texas, like California before it, is in a position to be bringing more of these lawsuits, it does mean that the Fifth Circuit will be in the spotlight,” said

Scott Keller,

a former solicitor general of Texas.

The Fifth Circuit long has been among the most conservative jurisdictions within the federal judiciary. It has become consistently more conservative, however, with the addition of Mr. Trump’s six appointees, who were part of a push by the GOP to make filling court vacancies a priority, allowing the Trump White House to shape the direction of the federal courts.

The newest Fifth Circuit judges have made their mark in some of the court’s biggest cases and been vocal on issues including abortion.

One of them, Judge

James Ho,

was part of the 2-1 majority last week that allowed the Texas abortion law to remain in place while the Justice Department challenges it. In a previous case from 2018, Judge Ho called abortion a “moral tragedy.”

Two other Trump appointees were part of an earlier Fifth Circuit panel that declined to block the Texas law before it went into effect Sept. 1, citing what it said were procedural problems with a separate lawsuit filed by abortion providers.

The Fifth Circuit is set to hear oral arguments in December to further consider the two challenges to the Texas law, though those plans could change if the Supreme Court chooses to take up the cases soon without waiting for the appeals court to issue a ruling. No court has yet issued a full-merits ruling on the state’s restrictions, which Texas lawmakers wrote in a novel way designed to make them more difficult to challenge in court.

William Jay,

an appellate lawyer with Goodwin Procter LLP in Washington, D.C., said while the Fifth Circuit wasn’t the only regional federal court with a large contingent of conservative judges, “There are more thought-leader conservatives on the Fifth Circuit” than on most others. That is because the court has a large number of judges, a docket regularly populated with high-profile cases and a large audience for its work, he said. Given the court’s makeup, he added, “Just as a matter of probabilities, you are more likely to draw a conservative-leaning panel.”

On immigration, a three-judge Fifth Circuit panel, including two Trump appointees, ruled in August that the Biden administration for now has to maintain a Trump-era policy requiring asylum seekers at the southern U.S. border to remain in Mexico while their claims are considered. The court agreed with a trial judge that the Biden administration hadn’t offered sufficient reasons for rescinding the policy. The Supreme Court also rejected the administration’s emergency bid to keep the Trump policy from being reinstated.

In a separate case, the court last week declined a Biden administration request to postpone proceedings in a long-running challenge to the Deferred Action for Childhood Arrivals program, or DACA, an Obama-era initiative that provided deportation protections and work permits to some young immigrants. The Department of Homeland Security wanted the case put on hold while it wrote new rules it hoped would pass legal muster.

The administration, however, did win some relief from the appeals court in another immigration case, where an ideologically mixed three-judge panel partially allowed it to move forward with a policy of not arresting or deporting immigrants unless they have committed serious crimes.

The Fifth Circuit previously was home to legal battles challenging Obama-era policies. The court in 2015 blocked the Obama administration’s plans to extend deportation protections and benefits to a broader range of immigrants. A short-handed Supreme Court deadlocked 4-4 on the issue, which left the Fifth Circuit ruling in place and effectively ended the effort.

In 2019, the appeals court ruled a central feature of the Affordable Care Act was unconstitutional, but the Supreme Court reversed that decision in June, ruling Texas and other Republican-led states lacked standing to challenge the 2010 healthcare law.

The high court in recent years also has reversed the Fifth Circuit in cases involving abortion, striking down restrictions in Louisiana and Texas after the appeals court allowed them.

Despite the Fifth Circuit’s overall conservatism, its Republican appointees don’t hold monolithic views on the law. One prominent split has focused on the doctrine of qualified immunity that provides legal protections to police and other public officials accused of misconduct.

Judge

Don Willett,

a Trump appointee and former justice on the Texas Supreme Court, has argued the current legal approach “shields lawbreaking officials from accountability, even for patently unconstitutional abuses,” and should be re-examined.

Judge Ho, meanwhile, has argued that the doctrine is appropriately calibrated to provide police with the leeway they need to perform an often dangerous job and prevent judges from “sneering at cops on the beat from the safety of our chambers.”

Write to Brent Kendall at brent.kendall@wsj.com