Musings on the recent en banc vote

A recurring theme in my CLE presentations about the Fifth Circuit is that the phrase “a conservative court” is largely meaningless. To be sure, a majority of Fifth Circuit judges were appointed by Republican presidents, and many judges on the court have “conservative” philosophies, but what that actually means in a specific case about separation of power between judge and jury, trial and appellate courts, branches of government, etc. can vary a great deal.

Consider the recent 8-7 vote against en banc rehearing in Passmore v. Baylor Health, discussed in yesterday’s post, which involved a close Erie question about state law pre-suit requirements. In a slide I just prepared for the upcoming Advanced Civil Appellate course in Austin, you can see the nominees of Republican presidents in red and those of Democratic presidents in blue — the “for” vote was 5-2 and the “against” vote was 5-3. (The judges with stars by their names joined a dissent.) Perhaps that split just shows that this technical issue is not ideological, but I think it also shows that there is far more to judicial philosophy than the simple label of “conservative.”