The 5th Circuit Court of Appeals Is Spearheading a Judicial Power Grab - Center for American Progress

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The 5th Circuit Court of Appeals Is Spearheading a Judicial Power Grab
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The 5th Circuit Court of Appeals Is Spearheading a Judicial Power Grab

The rogue 5th Circuit Court has helped undermine the separation of powers, established precedent, and principled legal reasoning to accomplish right-wing policy goals; the Supreme Court continuing to follow suit would strip power away from elected representatives and American voters.

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In this article
A demonstrator holds a sign in front of the U.S. Supreme Court building.
Demonstrators gather outside the U.S. Supreme Court in Washington, D.C., on March 26, 2023, as the court hears arguments on a case brought up from the 5th Circuit. (Getty/Anna Moneymaker).

Introduction and summary

Traditionally, U.S. Courts of Appeals serve as gatekeepers to the U.S. Supreme Court, keeping district court judges in check.1 Circuit court panels, typically comprising three judges randomly selected from a pool of often ideologically diverse jurists, are supposed to review district court decisions with a degree of caution and procedural care.2 Many circuit courts have high standards when reviewing a case where the outcome could profoundly affect the entire country.3 The U.S. Circuit Court of Appeals for the 5th Circuit, however, has recently proved to be an outlier in any type of effective gatekeeping, with disastrous results for stable jurisprudence and the American people.4

In recent years, the 5th Circuit, which serves Texas, Louisiana, and Mississippi, has allowed extremist lower court judges to issue sweeping, politically fraught rulings that advance right-wing policy positions.5 In doing so, the 5th Circuit invites the Supreme Court—currently dominated by right-wing extremists to a degree unseen in modern history—to take sweeping action to roll back decades of progress.6 In fact, constitutional law professors across the country are aghast at the partisanship of this Supreme Court’s decisions. In cases involving abortion rights, gun laws, voting rights, labor unions, the separation of church and state, and affirmative action, the court has used flimsy legal theories to overturn decades of precedent—all in ways that advance right-wing political priorities and ideology.7 With unmoored legal theories, unprecedented procedural maneuvers, and unchecked politicization, the 5th Circuit has paved the way for a judicial power grab, where federal judges with lifetime appointments to the bench are not held accountable for implementing their own policy preferences, thus stripping power away from elected officials and American voters.

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The supreme 5th Circuit

The 5th Circuit is arguably the most right-wing federal appellate court in the country and has achieved outsize power in shaping this Supreme Court’s disruptive jurisprudence.8 Although the 5th Circuit only serves three states, it has had an unprecedented number of politically charged cases before the Supreme Court this term involving issues such as abortion, guns, immigration and federal power.9 The Supreme Court started agreeing to review more 5th Circuit cases during the Trump administration, once right-wing justices gained a supermajority on the high court.10 The high court has also heard a disproportionate number of cases from the 5th Circuit on the nonmerits “shadow docket” as the circuit court continues to make unwarranted procedural moves.11 As the 5th Circuit has continued to push against existing law both substantively and procedurally, it would make sense for the Supreme Court to take up more of these cases to correct the circuit court’s unruly behavior. However, in practice, the Supreme Court has affirmed or partially affirmed some of the 5th Circuit’s most egregious decisions, steadily moving American jurisprudence far to the right.12 In short, the 5th Circuit has led the charge in pushing the Supreme Court to take unequivocally extreme positions that strip away Americans’ fundamental rights and hard-fought protections. Rulings such as Dobbs v. Jackson Women’s Health Organization, which originated in the 5th Circuit and dismantled the constitutional right to abortion, are just the tip of the iceberg.13

In practice, the Supreme Court has affirmed or partially affirmed some of the 5th Circuit’s most egregious decisions, steadily moving American jurisprudence far to the right.

Just this term, the Supreme Court is considering several 5th Circuit cases that have dire stakes, including cases where the 5th Circuit has decided:

  • To undermine the safety of domestic violence survivors by allowing abusers to have access to firearms14
  • To restrict the use and availability of mifepristone, a 20-year-old drug used in more than half of all U.S. abortions15
  • To prohibit federal law enforcement and the Centers for Disease Control and Prevention from communicating with social media platforms on matters of critical public importance, including foreign disinformation campaigns16
  • In multiple cases, to undermine much of functional governance at the federal level17

This past year, the 5th Circuit has also ruled that Texas hospitals and doctors are not required to perform emergency abortions as stabilizing treatment under federal law,18 asserted that state law preempts a federal program that allows teens in Texas to get contraceptives confidentially,19 halted an order to reverse racially discriminatory voting redistricting lines in Texas,20 challenged federal supremacy in immigration enforcement,21 and effectively gutted the First Amendment right to protest in Texas.22 These decisions have been based on what had previously been considered fringe or novel legal theories and often involve overturning long-standing precedent.

Not only has the 5th Circuit relied on increasingly unmoored legal analyses, but it also continues to bypass procedural norms to reach extreme ends.23 Cases related to the COVID-19 pandemic are a prime example: Typically, when multiple challenges to the same federal policy are filed in multiple circuit courts across the country, under federal law, those cases are supposed to be consolidated in a single court via a lottery system.24 During the pandemic, there were challenges in virtually every circuit to the Occupational Safety and Health Administration’s rule that required businesses to vaccinate or comply with COVID-19 testing measures for employees.25 Yet unlike all the other circuit courts, the 5th Circuit did not wait for the lottery; it rushed to issue its own decision blocking the policy while ignoring its fellow circuits, which ultimately came to the opposite conclusion.26 Similarly, the 5th Circuit also violated procedural norms to upend the federal government’s eviction moratorium that prevented hundreds of thousands of Americans from being kicked out of their homes during the pandemic.27

Case study: 5th Circuit extremism on immigration

Immigration enforcement has long been under the constitutional purview of the federal government—for good reason, as it concerns the United States’ borders as well as its diplomatic relationships with foreign governments.28 In 2012, the Supreme Court ruled in Arizona v. United States that state and local authorities cannot pursue immigration policies that undermine federal law, including imposing criminal sanctions targeting undocumented immigrants.29 The 5th Circuit has repeatedly attempted to undermine this settled jurisprudence, essentially attempting to take control of U.S. immigration enforcement and border policy.30

For example, the 5th Circuit recently prevented U.S. Customs and Border Protection from removing razor wire that the state of Texas erected in rivers and along dozens of miles of land on the southern border.31 The federal government argued that the razor wire prevented its agents from accessing areas needed to carry out enforcement and from processing responsibilities entrusted to them by federal law.32 After Texas’ state action made its way up to the Supreme Court,33 the court, without comment and in a 5-4 vote, overruled the 5th Circuit’s decision and allowed the federal government to cut the razor wire temporarily.34 The suit itself remains pending, and the state has continued to put up additional razor wire.35

In another case, United States v. Texas, one panel of the 5th Circuit administratively stayed a preliminary injunction of S.B. 4, a blatantly unconstitutional Texas law that would give state officials the authority to arrest, detain, and remove people suspected of having entered the country illegally.36 Critics of the law argue that it will allow for rampant racial profiling of people residing in Texas.37 The 5th Circuit panel issued the injunction on the ruling of Judge David Ezra of the U.S. District Court for the Western District of Texas, a moderate Reagan appointee who had ruled that the law blatantly violates the supremacy clause of the U.S. Constitution, as well as well-established Supreme Court precedent holding that only the federal government may enforce the nation’s immigration laws.38 Up to this point, everything in the case has been procedurally unusual and chaotic; for example, one 5th Circuit panel nearly allowed the law to take effect without issuing any analysis of the Western District’s carefully reasoned decision to block the law.39 The case remains pending at the time of publication, and immigrants residing in Texas are left unsure about the fate of the law.40

Extremist nominees have pushed the 5th Circuit further to the right

Cases appealed to circuit courts are typically decided by panels of three judges, randomly chosen from a pool of judges often appointed by different presidents.41 The 5th Circuit is somewhat unique in composition, comprising 12 judges nominated by Republican presidents and five nominated by Democratic presidents, with half of the Republican-appointed judges proffered by the Trump administration.42 To that end, an overwhelming number of politically fraught 5th Circuit decisions at the Supreme Court originate from panels where the majority of the judges—if not all three—have displayed extreme right-wing leanings.

The 5th Circuit moved considerably to the right during the last presidential administration: The six judges appointed by then-President Donald Trump have particularly partisan backgrounds, and many have deep ties to right-wing organizations and litigants such as the Federalist Society and the Heritage Foundation.43 With this influx of extreme conservatives on the bench, 5th Circuit decisions tend to achieve long-standing right-wing policy goals. For example:

  • Judge Cory Wilson44 was an elected Republican representative in the Mississippi Legislature before taking the bench. He authored the majority opinion in Consumer Financial Protection Bureau v. Community Financial Services Association of America,declaring that the agency tasked with protecting consumers is unconstitutional based on its source of funding.45 Wilson’s decision, joined by two other Trump appointees, was far from the baseline of existing jurisprudence: The Consumer Financial Protection Bureau has long been the target of monied right-wing interests seeking to nullify the agency, but never before in the history of American jurisprudence has a judge determined that Congress does not have the authority to define the mechanisms by which independent agencies receive their funding.46
  • Before joining the 5th Circuit, when Judge Andrew Oldham47 was the deputy solicitor general of Texas, he argued on multiple occasions to gut the Voting Rights Act.48 During his confirmation hearing to the 5th Circuit, he refused to state whether Brown v. Board of Education—the case that desegregated public schools—was correctly decided.49 Oldham has since sat on a panel that issued a restriction on voting rights, in which the court agreed that Texas does not have to inform a voter if their ballot was rejected based on a mismatching signature until after the election.50
  • Judge James Ho51 was sworn into office by Justice Clarence Thomas in the private home library of Harlan Crow—the right-wing billionaire at the center of the Thomas ethics scandal.52 Ho’s wife, Allyson Ho—a powerful appellate attorney—received multiple payments from the Alliance Defending Freedom (ADF), the group litigating the mifepristone case, Food and Drug Administration (FDA) v. Alliance for Hippocratic Medicine.53 Despite that fact, Ho sat on the 5th Circuit panel in the case that agreed to restrict access to the abortion pill.54 While the payments may not technically violate the judicial code of conduct, the appearance of a financial relationship—even if ostensibly at arm’s length—between the right-wing legal movement and jurists such as Ho is concerning.55

Judge shopping leads to nationwide injunctions at the 5th Circuit

Judge shopping has provided an efficient way for right-wing litigants and conservative state attorneys general to get their priorities before the 5th Circuit and, subsequently, the Supreme Court. Typically, various guardrails prevent litigants from judge shopping, or strategically filing cases in certain courts to draw a sympathetic judge.56 However, the structure and venue rules of several district courts within the 5th Circuit—particularly the Northern District of Texas and Western District of Louisiana—allow the right-wing legal movement to hand-pick the judges they want to hear their cases. This lies in contravention of the general principle under the American legal system that litigants should not get to pick which judge hears a case.57

District courts—also known as federal trial courts—in Texas serve geographically large areas such that they are divided into local divisions, many of which have only one active judge.58 District courts make their own rules as to how cases are assigned, which in some cases can enable litigants to strategically file cases where they are guaranteed a certain judge.59 The right-wing legal movement has taken advantage of this, filing cases in divisions with particularly radical right-wing jurists—many of whom were appointed by President Trump—who will likely be sympathetic to politically charged claims.60

The abuse of judge shopping has also led to a proliferation of nationwide injunctions blocking Biden administration policies.61 Essentially, it only takes a single district court judge—such as Judge Matthew Kacsmaryk in Amarillo, Texas—to issue a procedural halt, called an injunction, to prevent a federal policy from going into effect across the country, or even reversing a federal policy that has been in operation for some time.62 During the Trump administration, the right-wing legal movement decried liberal-leaning circuits issuing nationwide injunctions, suggesting they were an abuse of judicial power.63 But during the Biden administration, the conservative legal movement became noticeably quieter on the matter, as extreme right-wing organizations utilized judge shopping in single-judge divisions to issue these types of expansive injunctions on Biden administration policies.64

The pattern often goes as follows: A conservative attorney general or a litigant with significant ties to right-wing organizations files a lawsuit challenging a Biden administration policy in a single-judge division with a highly partisan jurist, guaranteeing a favorable outcome.65 The district court judge issues a nationwide injunction blocking the policy, which inevitably goes to the 5th Circuit and often up to the Supreme Court.66 For example, since 2021, Texas Attorney General Ken Paxton has filed more than two dozen challenges to the Biden administration’s immigration policies, seeking nationwide injunctive relief—but none were filed in Austin, Texas, where his office is located. Rather, the cases have been brought in far-flung divisions in Texas where Paxton can choose the judge.67 In Austin, a judge would have been randomly selected from the six jurists serving in that division, most of whom are relatively moderate.68

In one of these cases, Judge Drew Tipton of the Southern District of Texas, who hears virtually all the cases filed in the Victoria Division, essentially took control of the U.S. Department of Homeland Security’s Immigration and Customs Enforcement (ICE) in July 2022, allowing Texas to nullify the federal government’s constitutional and statutory authority to set immigration priorities.69 Attorney General Paxton also brought challenges to the Biden administration’s attempt to unravel the Trump-era “Remain in Mexico” policy before Kacsmaryk, who hears almost all the cases in the Amarillo Division, which is located nearly 500 miles from both the U.S.-Mexico border and Austin.70 Attorney General Paxton similarly brought cases before Judge Mark Pittman in an attempt to dismantle the Affordable Care Act (ACA) on several occasions, and he sought to declare the Indian Child Welfare Act unconstitutional in a case before Judge Reed O’Connor. Together, Pittman and O’Connor hear almost all the cases filed in Fort Worth, Texas.71

In another recent case, Murthy v. Missouri, the attorneys general of Louisiana and Missouri sought to enjoin several components of the federal government from communicating with social media platforms in any fashion.72 They did not bring the case in either state’s capital, but rather in Monroe, Louisiana—the state’s eighth-largest city—in order to hand-select Judge Terry Doughty. Likewise, in FDA v. Alliance for Hippocratic Medicine, the plaintiffs—a front group for out-of-state, anti-abortion activists—incorporated their organization in Amarillo, Texas, three months prior to bringing a lawsuit before Judge Kacsmaryk. This lawsuit requested a nationwide injunction on an abortion medication approved four times by the FDA over a 20-year period.73

Examples of right-wing judge shopping in the 5th Circuit

Single-judge divisions with ideologically aligned judges in U.S. district courts within the 5th Circuit are responsible for some of the most sweeping rulings in recent years, striking down government action and progressive policies, and otherwise advancing a right-wing agenda. A handful of examples include:

  • The Northern District of Texas, Fort Worth Division, where Reed O’Connor hears approximately half of cases and Mark Pittman hears the other half: Both are extremist right-wing jurists. In Braidwood Management Inc. v. Becerra in 2023, O’Connor struck down portions of the ACA that require health insurance provided by Christian-owned businesses to cover preventive services for medications that prevent HIV transmission.74 In 2019, he halted the ACA’s contraceptive coverage requirements, and in 2018, he ruled the entire ACA unconstitutional.75 He twice enjoined the Bureau of Alcohol, Tobacco, Firearms and Explosives from regulating untraceable “ghost guns.”76

    Pittman, for his part, invalidated the Biden administration’s student debt relief program in 2022.77 More recently, he declared the Minority Business Development Agency’s consideration of race unconstitutional.78

  • The Northern District of Texas, Lubbock Division, where Judge James Wesley Hendrix hears 67 percent of cases: In Texas v. Garland, Hendrix found the $1.7 trillion 2022 federal government funding bill unconstitutional, although he did limit the ruling to block a requirement that Texas provide pregnant employees with reasonable accommodations at work.79
  • The Northern District of Texas, Amarillo Division, where Matthew Kacsmaryk hears 95 percent of cases: An anti-abortion activist before joining the bench, Kacsmaryk has issued extreme rulings restricting access to medication abortion in FDA v. Alliance for Hippocratic Medicine and undermining LGBTQ+ First Amendment rights in State of Texas v. Equal Employment Opportunity Commission, where he banned a college drag show.80 In Deanda v. Becerra, he ruled that a federal program allowing minors to obtain birth control without parental consent violated the parents’ constitutional rights to raise children in accordance with Christian values.81
  • The Western District of Louisiana, Monroe Division, where Judge Terry Doughty hears 90 percent of cases:In Murthy v. Missouri, Doughty prohibited the White House, the FBI, the Centers for Disease Control and Prevention, and the Cybersecurity and Infrastructure Security Administration from communicating with social media platforms regarding election and public health issues, equating the U.S. government’s efforts to fight misinformation during the COVID-19 pandemic to the machinations of an “Orwellian ‘Ministry of Truth.’”82 He also struck down the Biden administration’s moratorium on oil and gas leases.83

While forum shopping, or filing a case in a particularly friendly circuit, is not new nor used exclusively by conservatives, the judge shopping scheme ensconced in the 5th Circuit is unique in that numerous districts have just one or two judges—and these judges are often ideologically aligned with conservatives.84 In response to an influx of pressure to reform these single-judge divisions, the Judicial Conference of the United States—the policymaking body for the federal court system—recently amended its policy to encourage random assignment for cases filed in divisions across districts where litigants are looking to bar state or federal action.85 The Judicial Conference likely took this step in the face of mounting public pressure to rein in the abuse of single-judge divisions, as well as Chief Justice John Roberts’ own warnings about judge shopping in patent law cases.86

Within days of the Judicial Conference’s announcement, Republican Sens. Mitch McConnell (KY), John Cornyn (TX), and Thom Tillis (NC) sent letters to 12 chief judges of federal district courts across the country, instructing them to ignore the policy.87 The right-wing legal community also predictably came out against the policy that would have prevented judge shopping.88 Perhaps most telling was the pushback from the right-wing judges on the 5th Circuit, including Judge Ho and Judge Edith Jones, who complained that the conference’s new policy was a result of partisan pressure.89 After these complaints from the right-wing legal community, Judicial Conference officials clarified that the policy was merely a recommendation, as district courts maintain statutorily mandated autonomy to make their own case assignment policies.90 Judge David Godbey, chief judge of the arguably most judge-shopped district in Texas, the Northern District, announced that the district would not implement the Judicial Conference’s recommendations.91 In response, Sen. Chuck Schumer (D-NY) released language for a bill to curb this kind of judge shopping, which essentially would codify the Judicial Conference’s recommendations.92 Sen. Mitch McConnell (R-KY) also introduced a bill that would limit a district court judge’s ability to issue nationwide injunctions, but it would do nothing to curb single-judge division judge shopping and seemingly muddies the waters.93

Even if Texas district courts were to heed the Judicial Conference’s advice, due to the packed conservative makeup of Texas federal courts—especially the Northern District, where 10 of the 11 active judges were appointed by Republican presidents, including six by then-President Trump—right-wing litigants could still likely draw a sympathetic judge by filing in the district.94 However, acceding to the Judicial Conference’s guidance would amount to tacit admission that judge shopping has occurred, hence the rejection. Even if judge shopping were eliminated in Texas, extreme 5th Circuit panels could still overrule more moderate district court opinions and continue to send novel legal theories in politically polarizing cases to the Supreme Court.95 Circuit courts are meant to stop unruly district court decisions from making their way to the Supreme Court, and the 5th Circuit has undoubtably failed in this respect.96

Policy recommendations

Congress could act to prevent some of the 5th Circuit’s egregious conduct by passing legislation that codifies the Judicial Conference’s recommendations regarding randomization of case assignment.97 As previously discussed, this would not completely solve the judge shopping issues in certain divisions in Texas, but it is a great start. A comprehensive legislative solution could also include limits to nationwide injunctive relief issued by one district judge—perhaps requiring a panel of multijurisdictional judges to hear those cases or allowing litigants to opt to remove the case for D.C. Circuit review. The Supreme Court should explicitly call out the 5th Circuit’s failure to rein in its rogue district court judges and prevent legally spurious arguments from making their way to the high court.98

The Supreme Court should explicitly call out the 5th Circuit’s failure to rein in its rogue district court judges and prevent legally spurious arguments from making their way to the high court.

President Biden and the Senate must continue to fill the district court vacancies within the 5th Circuit with reasonable, qualified jurists who are dedicated to upholding the rule of law instead of pandering to partisan political whims.99 This almost certainly would require the Senate Judiciary Committee to abandon its archaic blue slip process, by which home state senators must approve of a district court nominee in order for the nominee to move forward in the nominations process.100

Conclusion

Judges are human, susceptible to bias and making mistakes.101 The gatekeepers of the American federal court system—the U.S. Courts of Appeals—are supposed to act as a check on those anomalies. However, the 5th Circuit seems to have a different aim: to concentrate power within the right-wing judiciary to achieve partisan policy aims.102 Should the Supreme Court continue to follow the 5th Circuit’s lead, American jurisprudence will continue shifting radically to the right, in blatant disregard for the will of elected representatives and American voters. The American experiment is premised on a system of checks and balances, such that no single branch of the federal government can act unilaterally to undermine individual freedoms and the rule of law. As unelected judges continue to amass swaths of power reserved for the other branches, the constitutionally guaranteed balance of power suffers—as does Americans’ faith that their government serves all people, not just those with means and influence.

Endnotes

  1. Stephen I. Vladeck, “Court of First Review,” Harvard Law Review 138 (43) (2024), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4726492.
  2. Erin B. Kaheny, “Appellate Judges as Gatekeepers? An Investigation of Threshold Decisions in the Federal Courts of Appeals,” The Journal of Appellate Practice and Process12 (2) (2011): 256–281, available at https://lawrepository.ualr.edu/appellatepracticeprocess/vol12/iss2/4; Erin B. Kaheny, “The Nature of Circuit Court Gatekeeping Decisions,” Law & Society Review 44 (1) (2010): 129–156, available at http://www.jstor.org/stable/40783641.
  3. Developments in the Law, Federal Courts, “Chapter Four: District Court Reform: Nationwide Injunctions,” Harvard Law Review 137 (6) ( 2024): 1701–1724, available athttps://harvardlawreview.org/print/vol-137/district-court-reform-nationwide-injunctions/.
  4. Stephen Vladeck, “Why the Fifth Circuit Keeps Making Such Outlandish Decisions,” The Atlantic, November 28, 2023, available at https://www.theatlantic.com/politics/archive/2023/11/fifth-circuit-conservative-supreme-court/676116/.
  5. Ibid.
  6. Nina Totenberg, “The Supreme Court is the most conservative in 90 years,” NPR, July 5, 2022, available at https://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative; April Rubin, “Supreme Court ideology continues to lean conservative, new data shows,” Axios, July 3, 2023, available at https://www.axios.com/2023/07/03/supreme-court-justices-political-ideology-chart.
  7. Jesse Wegman, “The Crisis in Teaching Constitutional Law,” The New York Times, February 26, 2024, available at https://www.nytimes.com/2024/02/26/opinion/constitutional-law-crisis-supreme-court.html; Adam Liptak, “In a 6-to-3 Ruling, Supreme Court Ends Nearly 50 Years of Abortion Rights,” The New York Times, June 24, 2022, available at https://www.nytimes.com/2022/06/24/us/roe-wade-overturned-supreme-court.html; Billy Clark, “Second Amendment Challenges following the Supreme Court’s Bruen Decision,” Giffords Law Center to Prevent Gun Violence, June 21, 2023, available at https://giffords.org/memo/second-amendment-challenges-following-the-supreme-courts-bruen-decision/; Dahlia Lithwick and Mark Joseph Stern, “Supreme Court Served up Another Chance to Kill Voting Rights Act,” Slate, February 5, 2024, available at https://slate.com/news-and-politics/2024/02/supreme-court-kill-voting-rights-act.html; Ian Millhiser, “The Supreme Court deals another blow to labor unions,” Vox, June 1, 2023, available at https://www.vox.com/scotus/2023/6/1/23745372/supreme-court-unions-labor-strike-glacier-northwest-teamsters-amy-coney-barrett; David Smith, “Alarm as US supreme court takes a hatchet to church-state separation,” The Guardian, July 2, 2022, available at https://www.theguardian.com/law/2022/jul/02/us-supreme-court-religion-church-state-separation; Nina Totenberg, “Supreme Court guts affirmative action, effectively ending race-conscious admissions,” NPR, June 29, 2023, available at https://www.npr.org/2023/06/29/1181138066/affirmative-action-supreme-court-decision.
  8. Elissa Nadworny and Ian Millhiser, “How Trump appointees have helped transform the Fifth Circuit,” NPR, January 1, 2023, available at https://www.npr.org/2023/01/01/1146528811/how-trump-appointees-have-helped-transform-the-fifth-circuit.
  9. Katherine Fung, “Supreme Court’s Taking an Influx of Cases from One Circuit,” Newsweek, March 27, 2024, available at https://www.newsweek.com/supreme-courts-taking-influx-cases-one-circuit-1884278; SCOTUSblog, “October Term 2023,” available at https://www.scotusblog.com/case-files/terms/ot2023/ (last accessed March 2024); Adam Feldman, “Taking the Fifth,” Empirical SCOTUS, October 9, 2023, available at https://empiricalscotus.com/2023/10/09/taking-the-fifth/.
  10. Feldman, “Taking the Fifth.”
  11. Robert Barnes and Ann E. Marimow, “This conservative appeals court’s rulings are testing the Supreme Court,” The Washington Post, October 26, 2023, available at https://www.washingtonpost.com/politics/2023/10/26/5th-circuit-supreme-court-reversals-decisions/.
  12. The Economist, “A MAGA court in New Orleans is shaping the Supreme Court’s agenda,” November 30, 2023, available at https://www.economist.com/united-states/2023/11/30/a-maga-court-in-new-orleans-is-shaping-the-supreme-courts-agenda.
  13. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (June 24, 2022) available at https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.
  14. United States v. Rahimi, 5th Circuit 61-443 (March 2, 2023), available at https://casetext.com/case/united-states-v-rahimi-13. See also “United States v. Rahimi: The Fifth Circuit’s Dangerous and Extreme Decision,” Everytown for Gun Safety, February 2, 2023, available at https://www.everytown.org/united-states-v-rahimi-the-fifth-circuits-dangerous-and-extreme-decision/.
  15. S. Food and Drug Administration v. Alliance for Hippocratic Medicine, 5th Circuit 23-10362 (August 16, 2023), available at https://www.ca5.uscourts.gov/opinions/pub/23/23-10362-CV1.pdf. See also Sabrina Talukder, “Alliance for Hippocratic Medicine v. FDA: Legal Standing and the Impact on Abortion Access,” Center for American Progress, May 19, 2023, available at https://www.americanprogress.org/article/alliance-for-hippocratic-medicine-v-fda-legal-standing-and-the-impact-on-abortion-access/.
  16. Murthy v. Missouri, 23 U.S. 411 (March 18, 2024), available at https://www.scotusblog.com/case-files/cases/murthy-v-missouri-3/. See also Nicole Alvarez and Devon Ombres, “Free Speech or Free Rein? How Murthy v. Missouri Became a Soapbox for Misinformation Advocacy,” Center for American Progress, March 14, 2024, available at https://www.americanprogress.org/article/free-speech-or-free-rein-how-murthy-v-missouri-became-a-soapbox-for-misinformation-advocacy/.
  17. Jarkesy v. Securities and Exchange Commission, 5th Circuit 20-61007 (May 18, 2022), available at https://www.ca5.uscourts.gov/opinions/pub/20/20-61007-CV0.pdf. See also Devon Ombres, “SEC v. Jarkesy: The Threat to Congressional and Agency Authority,” Center for American Progress, November 27, 2023, available at https://www.americanprogress.org/article/sec-v-jarkesy-the-threat-to-congressional-and-agency-authority/; Lilith Fellowes-Granda and others, “CFPB v. CFSA: How the Supreme Court Could Harm Consumers and Financial Markets” (Washington: Center for American Progress, 2023), available at https://www.americanprogress.org/article/cfpb-v-cfsa-how-the-supreme-court-could-harm-consumers-and-financial-markets/.
  18. Texas v. Becerra, 5th Circuit 23-10246 (January 1, 2024), available at https://www.ca5.uscourts.gov/opinions/pub/23/23-10246-CV0.pdf.
  19. Deandra v. Becerra, 5th Circuit 23-10159 (March 12, 2024), available at https://law.justia.com/cases/federal/appellate-courts/ca5/23-10159/23-10159-2024-03-12.html.
  20. Petteway v. Galveston County, 5th Circuit 23-40582 (December 7, 2023), available at https://www.ca5.uscourts.gov/opinions/pub/23/23-40582-CV2.pdf.
  21. William Melhado, “U.S. Supreme Court says Texas can’t block federal agents from the border,” The Texas Tribune, January 22, 2024, available at https://www.texastribune.org/2024/01/22/texas-border-supreme-court-immigration/.
  22. Doe v. McKesson, 5th Circuit 17-30864 (June 16, 2024) available at https://www.ca5.uscourts.gov/opinions/pub/17/17-30864-CV4.pdf; Ian Millhiser, “A new Supreme Court case threatens your right to protest,” Vox, January 24, 2024, available at https://www.vox.com/scotus/2024/1/24/24042823/supreme-court-protest-mckesson-doe-fifth-circuit-first-amendment.
  23. Brianne Gorod, “One U.S. Circuit Court Is Breaking Every Rule in the Book to Push a Radical Agenda,” Slate, January 27, 2022, available at https://slate.com/news-and-politics/2022/01/fifth-circuit-ignores-supreme-court-breyer.html.
  24. Robert Iafolla, “Lottery Will Pick Court to Hear Biden Shot-or-Test Challenges,” Bloomberg Law, November 5, 2021, available at https://news.bloomberglaw.com/daily-labor-report/lottery-will-pick-court-to-hear-biden-shot-or-test-challenges.
  25. U.S. Department of Labor, Occupational Safety and Health Administration, “COVID-19 Vaccination and Testing; Emergency Temporary Standard; Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination; Interim Final Rules,” November 5, 2021, available at https://www.osha.gov/laws-regs/federalregister/2021-11-05.
  26. BST Holdings v. Occupational Safety and Health Administration, 5th Circuit 21-60845 (November 12, 2021), available at https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf.
  27. Gorod, “One U.S. Circuit Court Is Breaking Every Rule in the Book to Push a Radical Agenda”; Lauren Terkel v. Centers for Disease Control, Eastern District Court of Texas 6:20-cv-00563 (February 25, 2021), available at https://www.law360.com/articles/1359176/attachments/0. In this case, after prolonged litigation regarding the eviction moratorium, the federal government decided to rescind the rule. Instead of declaring the case moot, as would have been procedurally appropriate, the 5th Circuit instead required that the district court opinion that held that the original eviction moratorium rule was unconstitutional remain in place in order to create precedent against federal power.
  28. Karthick Ramakrishnan and Pratheepan Gulasekaram, “Understanding Immigration Federalism in the United States” (Washington: Center for American Progress, 2014), available at https://www.americanprogress.org/article/understanding-immigration-federalism-in-the-united-states/.
  29. Oyez,”Arizona v. United States,” available at www.oyez.org/cases/2011/11-182 (last accessed April 2024).
  30. Kevin McGill, “Texas immigration ruling puts spotlight on nation’s most conservative federal appeals court,” The Associated Press, March 20, 2024, available at https://apnews.com/article/5th-circuit-conservatives-migrants-supreme-court-72b16a044c310cceb7af51c5dcf0f786.
  31. Uriel J. García, “Appeals court halts ruling that Border Patrol can legally cut Texas’ border concertina wire,” The Texas Tribune,December 4, 2023, available at https://www.texastribune.org/2023/12/04/texas-border-concertina-wire-court-ruling-fifth-circuit/.
  32. John C. Moritz, “Abbott vows to keep border security fight after Supreme Court rules feds’ can cut razor wire,” Austin American-Statesman, January 23, 2024, available at https://www.statesman.com/story/news/politics/state/2024/01/23/texas-border-razor-wire-supreme-court-decision-governor-greg-abbott-ken-paxton-feds-feud/72324361007/.
  33. Melhado, “U.S. Supreme Court says Texas can’t block federal agents from the border.”
  34. Ibid.
  35. Bethany Blankley, “Texas continues to build concertina wire barriers, border wall,” Star Local Media, April 29, 2024, available at https://starlocalmedia.com/news/state/texas-continues-to-build-concertina-wire-barriers-border-wall/article_11d2f587-e59f-5f53-be66-9a692b8dc1f6.html.
  36. Becky Sullivan, “What to know about SB 4, the Texas immigration law in the courts now,” NPR, March 20, 2024, available at https://www.npr.org/2024/03/20/1239651676/sb4-texas-immigration-law.
  37. Kevin McGill, “Appeals court keeps Texas’ migrant arrest law on hold,” The Texas Tribune, March 27, 2024, available at https://www.texastribune.org/2024/03/27/fifth-circuit-texas-immigration-law/; American Civil Liberties Union, “Supreme Court Extends Pause on Anti-Immigrant Texas Legislation that Would Overstep Federal Law,” March 12, 2024, available at https://www.aclu.org/press-releases/supreme-court-extends-pause-on-anti-immigrant-texas-legislation-that-would-overstep-federal-law.
  38. Sullivan, “What to know about SB 4, the Texas immigration law in the courts now.”
  39. Ibid.
  40. McGill, “Appeals court keeps Texas’ migrant arrest law on hold.”
  41. U.S. Courts, “Appellate Courts and Cases – Journalist’s Guide,” available at https://www.uscourts.gov/statistics-reports/appellate-courts-and-cases-journalists-guide#panels (last accessed March 2024).
  42. Ballotpedia, “United States Court of Appeals for the Fifth Circuit,” available at https://ballotpedia.org/United_States_Court_of_Appeals_for_the_Fifth_Circuit (last accessed March 2024).
  43. Accountable.US, “Federalist Society-Affiliated Judges On The Fifth Circuit Continue To Make Extreme Rulings In Pivotal Cases– Pandering To Leonard Leo’s Extreme Agenda,” January 4, 2024, available at https://accountable.us/wp-content/uploads/2024/01/20240102-FedSoc-Affiliated-Fifth-Curcuit-Judge-Rulings.pdf; Ian Millhiser, “How Republicans rigged Texas’s federal courts against Biden,” Vox, August 10, 2022, available at https://www.vox.com/policy-and-politics/2022/8/10/23296841/supreme-court-biden-judiciary-republicans-texas-judge-shopping-immigration-obamacare.
  44. Alliance for Justice, “Cory Wilson Background Report,” May 19, 2020, available at https://afj.org/article/cory-wilson-background-report/.
  45. Inhance Technologies, LLC. Environmental Protection Agency, 5th Circuit 23-60620 (March 21, 2024), available at https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pdf.
  46. Ibid. See also Fellowes-Granda and others, “CFPB v. CFSA: How the Supreme Court Could Harm Consumers and Financial Markets.”
  47. Alliance for Justice, “Andrew Oldham,” available at https://afj.org/wp-content/uploads/2019/12/AFJ-Early-Look-Andrew-Oldham.pdf(last accessed April 2024).
  48. Jennifer Bendery, “Senate Confirms Trump Court Pick With Record Of Attacking Voting Rights,” HuffPost, July 18, 2018, available at https://www.huffpost.com/entry/trump-court-pick-restrict-voting-rights_n_5b4f5bc7e4b0fd5c73c143c7.
  49. Michael Hardy, “Meet the Three Texas Judges Trump Named to the Fifth Circuit,” Texas Monthly, December 15, 2020, available at https://www.texasmonthly.com/news-politics/three-texas-judges-trump-fifth-circuit/.
  50. Ibid.
  51. Alliance for Justice, “AFJ Nominee Snapshot: James Ho,” available at https://afj.org/wp-content/uploads/2019/12/AFJ-Snapshot-Ho.pdf (last accessed March 2024); Elie Mystal, “James Ho Wants to Be the Next Clarence Thomas,” The Nation, September 15, 2023, available at https://www.thenation.com/article/society/james-ho-next-clarence-thomas/.
  52. Joshua Kalpan, Justin Elliot, and Alex Mierjeski, “Clarence Thomas and the Billionaire,” ProPublica, April 6, 2023, available at https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow.
  53. Melissa Segura, “The next Clarence Thomas? Abortion pill case spotlights rightwing judge and his wife’s shadowy connections” The Guardian, March 25, 2024, available at https://www.theguardian.com/world/2024/mar/25/judge-james-ho-wife-mifepristone-abortion-pill
  54. Ibid.
  55. Ibid.
  56. Millhiser, “How Republicans rigged Texas’s federal courts against Biden.” (“Chance normally plays a big role in federal litigation. When a plaintiff files a lawsuit, that suit is typically assigned to a district judge at random from among the federal trial judges who sit in the same geographic region. On appeal, the overwhelming majority of cases are heard by three-judge panels selected at random from among an appeals court’s judges.”) See also Vladeck, “Court of First Review.”
  57. Vladeck, “Why the Fifth Circuit Keeps Making Such Outlandish Decisions.”
  58. Barnes and Marimow, “This conservative appeals court’s rulings are testing the Supreme Court.”
  59. Alex Botoman, “Divisional Judge-Shopping,” Columbia Human Rights Law Review 49 (2) (2018): 315–344, available at https://ssrn.com/abstract=3158778; See also Steven Vladeck, “Don’t Let Republican ‘Judge Shoppers’ Thwart the Will of Voters,” The New York Times, February 5, 2023, available at https://www.nytimes.com/2023/02/05/opinion/republicans-judges-biden.html.
  60. Millhiser, “How Republicans rigged Texas’s federal courts against Biden.”
  61. Ian Millhiser, “The Trumpiest court in America,” Vox, December 27, 2022, available at https://www.vox.com/policy-and-politics/2022/12/27/23496264/supreme-court-fifth-circuit-trump-court-immigration-housing-sexual-harrassment. (“That’s one part of a perfect storm: Texas’s Republican attorney general and other conservative litigants frequently bring challenges to Biden administration policies in Texas’s federal trial courts.”) Richard J. Pierce Jr., “The Supreme Court Should Eliminate Its Lawless Shadow Docket” (Washington: George Washington University, 2021), available at https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2805&context=faculty_publications.
  62. Congressional Research Service, “Nationwide Injunctions: Recent Legal Developments” (Washington: 2021), available at https://crsreports.congress.gov/product/pdf/LSB/LSB10664/1.
  63. Mark Joseph Stern, “Conservative Judges Keep Doing Things They Say They Hate,” Slate, June 16, 2021, available at https://slate.com/news-and-politics/2021/06/conservative-judges-nationwide-injunction-biden.html.
  64. Ibid.
  65. Millhiser, “The Trumpiest court in America.”
  66. Ibid.
  67. Uriel J. García, “Texas federal judge dismisses Ken Paxton’s lawsuit against Biden’s immigration program,” The Texas Tribune, March 8, 2024, available at https://www.texastribune.org/2024/03/08/ken-paxton-immigration-lawsuit/.
  68. U.S. District Court Western District of Texas, “Judges’ Directory and Biographies: Austin,” available at https://www.txwd.uscourts.gov/judges-information/judges-directory-biographies/ (last accessed April 2024).
  69. Ian Millhiser, “A Trump judge seized control of ICE, and the Supreme Court will decide whether to stop him,” Vox, November, 27, 2022, available at https://www.vox.com/policy-and-politics/2022/11/27/23464741/supreme-court-ice-drew-tipton-texas-united-states-immigration.
  70. Kelsey Ables, “U.S. judge in Amarillo halts Biden administration’s attempt to end ‘remain in Mexico’ policy,” The Texas Tribune, December 16, 2022, available at https://www.texastribune.org/2022/12/16/remain-in-mexico-mpp-judge-ruling-migrants/.
  71. Matt Ford, “The Fifth Circuit’s Reign of Error Is in Jeopardy,” The New Republic, March 29, 2024, available at https://newrepublic.com/article/180233/texas-mifepristone-judge-shopping-supreme-court.
  72. Alvarez and Ombres, “Free Speech or Free Rein? How Murthy v. Missouri Became a Soapbox for Misinformation Advocacy.”
  73. Jordan Smith, “The Shadow Medical Community Behind the Attempt to Ban Medication Abortion,” The Intercept, February 28, 2023, available at https://theintercept.com/2023/02/28/medication-abortion-lawsuit/; Emma Platoff, “Federal judge in Texas strikes down Indian Child Welfare Act,” The Texas Tribune, October 5, 2018, available at https://www.texastribune.org/2018/10/05/federal-judge-texas-strikes-down-indian-child-welfare-act/.
  74. Laurie Sobel and others, “Explaining Litigation Challenging the ACA’s Preventive Services Requirements: Braidwood Management Inc. v. Becerra,” KFF, May 15, 2023, available at https://www.kff.org/womens-health-policy/issue-brief/explaining-litigation-challenging-the-acas-preventive-services-requirements-braidwood-management-inc-v-becerra/.
  75. Ibid.
  76. Nina Totenberg, “Supreme Court tells 5th Circuit to stop its defiance in ghost gun case,” NPR, October 16, 2023, available at https://www.npr.org/2023/10/16/1206245991/supreme-court-ghost-guns.
  77. William Melhado, “In latest challenge to student loan forgiveness program, a Texas judge blocks Biden’s policy,” The Texas Tribune, November 10, 2022, available at https://www.texastribune.org/2022/11/10/texas-judge-biden-student-loan-forgiveness/.
  78. Nate Raymond, “US judge bars federal minority-business agency from considering race,” Reuters, March 6, 2024, available at https://www.reuters.com/legal/us-judge-bars-federal-minority-business-agency-considering-race-2024-03-06/.
  79. State of Texas v. Merrick Garland, Northern District of Texas 5:23-cv-00034-H (July 28, 2023), available at https://fingfx.thomsonreuters.com/gfx/legaldocs/egvbmkeqbpq/07282023hendrix.pdf; Reuters, “Federal judge in Texas rules congressional passage of 2022 spending bill unconstitutional,” NBC News, February 27, 2024, available at https://www.nbcnews.com/politics/politics-news/federal-judge-texas-rules-congressional-passage-2022-spending-bill-unc-rcna140829.
  80. Ian Millhiser, “Republicans will no longer get to handpick their judges when they sue Biden,” Vox,March 12, 2024, available at https://www.vox.com/scotus/2024/3/12/24098760/supreme-court-matthew-kacsmaryk-judge-shopping-republicans-judicial-conference; C.J. Ciaramella, “Federal Judge Declines To Stop Drag Show Ban at Texas College,” Reason Magazine, September 22, 2023, available at https://reason.com/2023/09/22/federal-judge-declines-to-stop-drag-show-ban-at-texas-college/.
  81. Millhiser, “Republicans will no longer get to handpick their judges when they sue Biden.”
  82. Missouri v. Biden, Western District of Louisiana 22-cv.1213 (July 4, 2023), available at https://ago.mo.gov/wp-content/uploads/missouri-v-biden-ruling.pdf?sfvrsn=dd807c2_2.
  83. Joshua Partlow and Juliet Eilpern, “Louisiana judge blocks Biden administration’s oil and gas leasing pause,” The Washington Post, June 15, 2021, available at https://www.washingtonpost.com/climate-environment/2021/06/15/louisiana-judge-blocks-biden-administrations-oil-gas-leasing-pause/.
  84. Vladeck, “Court of First Review.” (“To be sure, ‘forum shopping’ is behavior in which most litigants engage. But Texas (like a handful of other litigants) is taking it one step further, repeatedly filing its lawsuits in parts of the state with no specific connection to the dispute, but in which it is guaranteed to draw a specific judge.”) Abbie VanSickle, “Schumer Urges End to Single-Judge Divisions in Texas,” The New York Times, April 27, 2023, available at https://www.nytimes.com/2023/04/27/us/politics/schumer-judge-shopping-texas.html.
  85. U.S. Courts, “Conference Acts to Promote Random Case Assignment,” March 12, 2024, available at https://www.uscourts.gov/news/2024/03/12/conference-acts-promote-random-case-assignment.
  86. Alice Clapman, Amanda Shanor, and Jennifer Ahearn, “Courts Move to Bolster Fairness by Addressing ‘Judge Shopping’,” Brennan Center for Justice, March 15, 2024, available at https://www.brennancenter.org/our-work/analysis-opinion/courts-move-bolster-fairness-addressing-judge-shopping; John Roberts, “2021 Year-End Report on the Federal Judiciary” (Washington: U.S. Supreme Court, 2021), p. 5, available at https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf.
  87. Tobi Raji, “U.S. courts clarify policy limiting ‘judge shopping’,” The Washington Post, March 16, 2024, available at https://www.washingtonpost.com/politics/2024/03/16/judge-shopping-guidance-abortion-patent-courts/. See, for example, Mitch McConnell, John Cornyn, and Thom Tillis, “Letter to Chief Judge Danny Reeves of the U.S. District for the Eastern District of Kentucky from Senators,” March 14, 2024, available at https://www.washingtonpost.com/documents/b144be52-2752-4f54-ad83-077d89f454fe.pdf?itid=lk_inline_manual_4.
  88. Josh Blackman, “The Volokh Conspiracy: The Judicial Conference Legislates From The Shadow Docket,” Reason Magazine, March 13, 2024, available at https://reason.com/volokh/2024/03/13/the-judicial-council-legislates-from-the-shadow-docket/.
  89. Nate Raymond, “Conservative US judges criticize new rule curbing ‘judge shopping’,” Reuters, March 13, 2024, available at https://www.reuters.com/legal/government/conservative-us-judges-criticize-new-rule-curbing-judge-shopping-2024-03-13/.
  90. Raji, “U.S. courts clarify policy limiting ‘judge shopping’.” See also Judicial Conference Committee on Court Administration and Case Management, “Guidance for Civil Case Assignment in District Courts” (Washington: 2024), available at https://www.washingtonpost.com/documents/9edeb4af-8765-48c6-a94a-733714925a13.pdf?itid=lk_inline_manual_2.
  91. Nate Raymond, “Texas federal court will not adopt policy against ‘judge shopping’,” Reuters, April 1, 2024, available at https://www.reuters.com/legal/texas-federal-court-will-not-adopt-policy-against-judge-shopping-2024-03-30/.
  92. Mattathias Schwartz, “Senate Leaders Look to Curb ‘Judge Shopping’ but in Different Ways,” The New York Times, April 10, 2024, available at https://www.nytimes.com/2024/04/10/us/judge-shopping-senate-schumer-mcconnell.html. See also End Judge Shopping Act, S. _, 118th Cong., 2nd sess., available at https://www.democrats.senate.gov/imo/media/doc/end_judge_shopping_act_schumerpdf.pdf (last accessed May 2024).
  93. Schwartz, “Senate Leaders Look to Curb ‘Judge Shopping’ but in Different Ways.” See also SHOP Act, S.4095, 118th Cong., 2nd sess. (April 10, 2024), available at https://www.congress.gov/bill/118th-congress/senate-bill/4095/text.
  94. Ballotpedia, “United States Court of Appeals for the Fifth Circuit.”
  95. Vladeck, “Why the Fifth Circuit Keeps Making Such Outlandish Decisions.”
  96. Vladeck, “Court of First Review.”
  97. U.S. Courts, “Conference Acts to Promote Random Case Assignment.”
  98. Vladeck, “Court of First Review.”
  99. Andrew Goudsward, “Senate panel hails rare unity on Biden nominee for 5th Circuit judge,” Reuters, May 17, 2023, available at https://www.reuters.com/legal/government/senate-panel-hails-rare-unity-biden-nominee-5th-circuit-judge-2023-05-17/; Ballotpedia, “Current federal judicial vacancies,” available at https://ballotpedia.org/Current_federal_judicial_vacancies (last accessed March 2024). This source includes the four current vacancies of district court seats in the Fifth Circuit, located in Louisiana or Mississippi. As of this writing, there is one district court nominee in Texas pending confirmation in the Senate.
  100. Alliance for Justice, “History of the Blue Slips in the Senate,” available at https://afj.org/wp-content/uploads/2023/02/2023_0208_BlueSlipFactSheet.pdf (last accessed March 2024).
  101. James M. Redwine, “You’re biased, I’m biased. So what are we judges going to do about it?”, The National Judicial College, June 25, 2018, available at https://www.judges.org/news-and-info/youre-biased-im-biased-so-what-are-we-judges-going-to-do-about-it/.
  102. Vladeck, “Why the Fifth Circuit Keeps Making Such Outlandish Decisions.”

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Senior Director, Courts and Legal Policy

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