The most recent Fifth Circuit Survey edition of the Texas Tech Law Review contains a short history of the Court by Judge Leslie Southwick.
The Fifth Circuit is leading the way with innovative and useful new technology. At a recent University of Texas Conference on State and Federal Appeals, Court Clerk Lyle Cayce gave a presentation about the Court that included demonstration of a useful new technology. After an attorney files a brief, the Court has software that quickly adds hyperlinks for all case and record citations (which is the reason for the recent local rule change to standardize the form for record references). Those links are then available to the judges and staff on their computers and tablets. Among other things, this new technology means that pre-argument review of the record is no longer limited to the parties’ record excerpts.
Three recent cases provide insight on how long-serving judges view basic issues about judicial power — (1) the denial of en banc rehearing in Huss v. Gayden, 585 F.2d 823 (5th Cir. 2009), a difficult Daubert case; (2) the en banc opinion of In re Volkswagen, 545 F.3d 304 (5th Cir. 2008), which granted mandamus relief for the denial of a 1404 venue transfer motion from the Eastern District of Texas; and (3) the 7-8 vote to deny en banc rehearing for In re Radmax, 730 F.3d 285 (5th Cir. 2013), where the panel granted mandamus relief to compel an intra-district transfer under section 1404.
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, which was 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.
Some notable opinions of the Court include:
Whole Woman’s Health v. Cole affirms regulations with a significant practical effect on the availability of abortions in Texas. No. 14-50928 (June 9, 2015).
In Villas at Parkside Partners v. City of Farmers Branch, the en banc court makes a significant contribution to the nationwide debate about local ordinances involving undocumented aliens. No. 10-10751 (July 22, 2013).
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. No. 11-30757 (March 20, 2013)
City of Alpine v. Abbott affirms the constitutionality of the Texas Open Meetings Act against a First Amendment challenge, finding it to be a “disclosure statute” and content-neutral. No. 11-50441 (Sept. 25, 2012).
Morgan v. Swanson, No. 09-40373 (5th Cir. September 27, 2011) (en banc) [a/k/a “The Candy Cane Case”] provides a thorough analysis by the full court of high school students’ First Amendment religious rights.
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.)
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”)