Fifth Circuit Court Information

A recent Fifth Circuit Survey edition of the Texas Tech Law Review contains a short history of the Court by Judge Leslie Southwick. An older, but thorough, history of the Court appears in A History of the Fifth Circuit: 1891-1981, published by Tulane Law School professor Harvey Couch in 1981.

Civil rights

The book “Unlikely Heroes” discusses the Fifth Circuit’s important civil rights opinions in the years after Brown v. Board of Education — a time when the Court included the southern states now in the Eleventh Circuit, created in 1981. Two magazine articles about those cases and that time on the court are “The Fascinating and Frenetic Fifth,” TIME (December 4, 1964), and Jack Bass, “The ‘Fifth Circuit Four,'” THE NATION (May 3, 2004). The Fifth Circuit Library maintains good reference material for and about the Court.  Its elegant courthouse at 600 Camp Street was once a neighbor of the infamous 544 Camp building that figures prominently in Kennedy assassination literature.

Misc. notable opinions of the Fifth Circuit

St. Joseph Abbey v. Castille enjoins a Louisiana law that required a seller of caskets to be a licensed funeral director.  The opinion provides a comprehensive background of “rational  basis” review and an eloquent summary of the policies it implicates, while also confirming that the “ghost of Lochner does not stalk the land.” 712 F.3d 215 (5th Cir. 2013).

Another significant religion opinion is Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003), aff’d, 545 U.S. 677 (2005) (5-4), dismissing a challenge to a monument that quotes the Ten Commandments and is located on the grounds of the Texas Capitol.

Judge Garwood’s opinion in United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993), finding that Congress exceeded its Commerce Clause power in enacting the Gun-Free School Zone Act, was affirmed in one of the first “Federalist Revival” opinions by the Rehnquist Court.  514 U.S. 549 (1995).

Fifth Circuit Judge Irving Goldberg was on the three-judge panel that wrote the lower court opinion in Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970) (per curiam), aff’d in part and rev’d in part, 410 U.S. 113 (1973). (Judge Goldberg, then in private practice in Dallas, advised Lyndon Johnson about the practical steps to assume the Presidency after the Kennedy assassination in 1963.) (Dobbs v. Jackson Women’s Health also came through the Fifth Circuit.)

Judge John Minor Wisdom‘s opinion in United States v. Jefferson County Board of Education, 372 F.2d 836 (5th Cir. 1966) (“The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate government purpose.”)

The 1948 showdown in the Democratic Senate primary between Lyndon Johnson and Coke Stevenson reached the Fifth Circuit in Johnson v. Stevenson, 170 F.2d 108 (5th Cir. 1948).

On a lighter note —

Chemical Specialties Manufacturers Ass’n v. Clark, 482 F.2d 325 (5th Cir. 1973) (Brown, C.J., concurring) (a/k/a “The Soap Case”)

United States v. Abner, 825 F.2d 835 (5th Cir. 1987) (a/k/a “The Talking Heads Case”)

Daboub v. Gibbons, 42 F.3d 285, 287 (5th Cir. 1995) (one of Irving Goldberg’s final opinions; a/k/a “The ZZ Top – ‘Fandango!’ Case”)