All the January Fifth Circuit En Banc Observations

Posted on by tadbartlett

Even with one of the en banc arguments canceled and the appeal dismissed for mootness, this was still an en banc sitting for the Fifth Circuit record books. Seven cases heard in six en banc arguments (the two 10 Commandments cases having been consolidated for oral argument only), and on a holiday-shortened week, at that. Through a combination of miracle, the excellent work and goodwill of the Court’s amazing calendaring and Clerk’s office staff, and perhaps a little bit of over-working myself (not complaining, because this job is endlessly fascinating and rewarding, but sometimes not optimal for the still ongoing recovery from 2025’s bicycle wrecks), I was able to sit in and observe all four days of en banc arguments. There was such a fantastic spectrum and display of oral argument approaches and talents.

And, writ large, this week’s arguments told a story of some of our foundational struggles and debates about how our government is structured, why it’s structured that way, and how we interact with it. Here are the links to my recaps of each day’s arguments:

And, hesitatingly, I include here my hunches as to outcomes, which you can also find in the observations posts above, which are almost sure to be rendered laughingly incorrect when the decisions come out. Consider this an act of humility rather than bravado:

  • On Roake and Nathan: Judges Elrod, Stewart, Richman, Haynes, Graves, Higginson, Douglas, and Ramirez in favor of the challengers to the 10 Commandments laws, plus senior-status Judge Dennis on Roake; and Judges Jones, Smith, Ho, Duncan, Engelhardt, Oldham, and Wilson in favor of the states; with Judges Southwick and Willett in the balance.
  • In Holberg my hunch is that Judges Elrod, Stewart, Graves, Higginson, Douglas, and Ramirez (plus the senior judge who was on the panel, Judge Higginbotham) would rule in favor of the petitioner, with Judges Southwick, Richman, and Haynes leaning that way; and that Judges Jones, Smith, Duncan, Engelhardt, and Oldham would rule in favor of the State, with Judges Ho and Wilson also leaning in that direction. That leaves Judge Willett as one I don’t have a hunch on.
  • On Airlines for America, my hunch is that the Court overwhelmingly will vacate on the APA basis, with perhaps a couple concurrences in part, with at most a handful of judges joining, to argue that the Court should have addressed statutory/regulatory authority and with an even split among those partial concurrers as to the answer to that question.
  • On U.S. v. Texas, my hunch is Judges Elrod, Jones, Smith, Ho, Duncan, Engelhardt, Oldham, and Wilson favoring Texas and reversal of the injunction of S.B.4, some on standing and some on the merits of the preemption argument; Judges Stewart, Richman, Graves, Haynes, Higginson, Douglas, and Ramirez in favor of upholding the injunctive relief for Las Americas; and no hunch as to Judges Southwick and Willett.
  • On W.M.M. v. Trump, my hunch is that Judges Jones, Smith, Ho, Duncan, Engelhardt, Oldham, and Wilson would favor reversal of the injunctive relief as to the AEA declaration; Judges Stewart, Southwick, Richman, Graves, Haynes, Higginson, Willett, Douglas, and Ramirez would favor affirming the injunctive relief; and Chief Judge Elrod may dissent in part on the basis of remanding for findings as to the status of the named plaintiff to determine if there is a named plaintiff remaining with standing for injunctive relief.
  • On Bay Area Unitarian Universalist Church, my hunch: Judges Jones, Smith, Willett, Engelhardt, Duncan, Oldham, and Wilson appear to side with affirming the dismissal of the plaintiffs’ challenge, with Chief Judge Elrod also leaning that way; Judges Stewart, Graves, Higginson, Douglas, and Ramirez, plus senior judge Dennis appear to side with reversing the dismissal, with Judge Ho maybe leaning that way; and I have no hunch one way or the other about Judges Southwick, Richman, or Haynes.