Three Straight Terms: What the Fifth Circuit’s SCOTUS Reversal Streak Means for Appellate Strategy

For the third consecutive Supreme Court term, the U.S. Court of Appeals for the Fifth Circuit closed out the term with more of its decisions reversed by the Supreme Court than any other federal appellate court. Of the eleven Fifth Circuit merits cases the Court actually decided during October Term 2025, eight were reversed or vacated, a reversal rate of roughly 73 percent, slightly above the Court’s overall reversal rate of about 70 percent for the term.¹ For litigators who practice regularly before the Fifth Circuit, and particularly for those of us who have spent decades appearing in Mississippi’s federal courts within the circuit, the run is no longer a curiosity to mention in a year-end memo. It is a pattern worth building into how appellate strategy gets planned from the moment a notice of appeal is filed.

This article looks at what actually happened in the Fifth Circuit’s docket at the Supreme Court this term, tests the “third consecutive term” claim against the available data, considers what is and is not driving the pattern, and offers some practical thoughts for counsel deciding whether and how to seek further review out of the circuit.

The Marquee Reversals of October Term 2025

The two cases drawing the most attention were, unsurprisingly, the two with the broadest practical stakes. In Watson v. Republican National Committee, the Court considered a Mississippi statute permitting absentee and mail-in ballots to be counted if postmarked by Election Day and received within a five-business-day grace period.² The Fifth Circuit had reversed the district court and held that the statute was preempted by federal election-day law, reasoning that an election is “consummated” only when a ballot reaches the custody of election officials. The Supreme Court disagreed, 5–4. Writing for the majority, Justice Amy Coney Barrett held that federal law governs when a vote must be cast, not when it must be received and counted, and that a state remains free to count late-arriving ballots within its own statutory grace period so long as the voter acted by Election Day. Notably, the panel the Court reversed was composed entirely of judges appointed during President Trump’s first term, one of four Fifth Circuit cases this term decided by panels with a majority of Trump appointees. The Court reversed in all four.³

The second marquee case, Chevron U.S.A. Inc. v. Plaquemines Parish, Louisiana, arose from Louisiana’s long-running litigation campaign against oil and gas companies over coastal erosion.⁴ Chevron sought to remove the parish’s state-court suit to federal court under the federal officer removal statute, arguing that its wartime contracts to refine aviation fuel connected its drilling activity to the exercise of federal authority. The Fifth Circuit affirmed a remand to state court, holding that Chevron’s contractual obligations did not specifically dictate its extraction methods and so lacked the necessary connection to federal duties. The Supreme Court vacated and remanded, 8–0, with Justice Clarence Thomas writing that the removal statute requires only a close relationship between the challenged conduct and a defendant’s federal duties, not strict causation or direction. Justice Ketanji Brown Jackson concurred only in the judgment, writing that the statute demands more. Justice Alito took no part, having recused over a financial interest in ConocoPhillips, parent of a co-defendant below.⁵ The decision reopened the federal forum for parish lawsuits seeking billions in coastal restoration costs, including one that already produced a jury verdict of more than $740 million against Chevron.⁶

Those two cases generated the headlines, but they were not outliers within the term’s broader pattern. The Court also reversed the Fifth Circuit in Olivier v. City of Brandon, Mississippi, holding unanimously that a street preacher’s Section 1983 claim for prospective relief was not barred by Heck v. Humphrey despite his earlier, unappealed conviction under the ordinance he was challenging.⁷ In Pitchford v. Cain, a Mississippi capital case, the Court held 5–4 that the state courts had unreasonably applied Batson v. Kentucky in treating the defendant as having waived his opportunity to argue that the prosecution’s race-neutral reasons for striking four Black jurors were pretextual, reversing the Fifth Circuit’s contrary reading of the state waiver ruling.⁸ The Court went on to reverse the circuit’s rulings on appellate-waiver enforcement in Hunter v. United States, on judicial estoppel in Keathley v. Buddy Ayers Construction, on the postal exception to the Federal Tort Claims Act in United States Postal Service v. Konan, and on the FCC’s administrative forfeiture authority in FCC v. AT&T.⁹

The circuit was not reversed across the board. The Court affirmed the Fifth Circuit in three cases: United States v. Hemani, holding that habitual, but not intoxicated, drug users retain Second Amendment rights to possess firearms; Landor v. Louisiana Department of Corrections and Public Safety, holding that the Religious Land Use and Institutionalized Persons Act does not permit individual-capacity damages claims against state officials; and Hain Celestial Group, Inc. v. Palmquist, holding that a district court cannot manufacture diversity jurisdiction through its own erroneous dismissal of a nondiverse party.¹⁰

Testing the “Third Consecutive Term” Claim

It is worth pausing on whether the widely repeated claim, that this is the third consecutive term the Fifth Circuit has topped the reversal list, actually holds up, because “most reversed” can mean different things depending on how it is measured. By raw count, the answer is yes. Circuit-by-circuit end-of-term data compiled by Ballotpedia from SCOTUSblog and Court records show the Fifth Circuit was reversed eight times during October Term 2023 and ten times during October Term 2024, the most of any circuit in both years.¹¹ This term’s eight reversals continue that streak. But by percentage, the Fifth Circuit was not actually the “worst” court this term: several circuits with smaller dockets were reversed at a higher rate. The Seventh, Eighth, and Eleventh Circuits combined for a perfect record of reversals across six cases, and the Fourth and Ninth Circuits were reversed seven and six times, respectively.¹² What distinguishes the Fifth Circuit is not that it loses more consistently than every other court; several circuits do. It is that the circuit sends the Supreme Court so many cases in the first place that its raw reversal total dwarfs the others. A circuit that puts one or two cases before the Court and loses both will always post a worse percentage than the Fifth Circuit, but too small a sample to generate headlines. The Fifth Circuit’s distinguishing feature is volume and durability: a large docket, sent to the Court year after year, that the Court has spent much of its time correcting.

What Is Actually Driving the Pattern

The more useful question for practitioners is whether there is a doctrinal or ideological throughline connecting these reversals, because the answer bears directly on predicting which Fifth Circuit rulings are vulnerable. According to David Coale, a Dallas appellate practitioner and president of the board of the Bar Association of the Fifth Federal Circuit, the circuit’s elevated reversal rate in recent years has often traced back to two recurring features of its jurisprudence: a permissive view of standing doctrine and an expansive approach to originalism.¹³ Neither of those drove this term’s cases. As Coale observed, no standing case out of the Fifth Circuit reached the Supreme Court’s docket this term at all, a friction point that, at least for now, appears to have eased.

Instead, the throughline in October Term 2025 was narrower and more mechanical: an unusual number of reversals turned on the Fifth Circuit applying legal tests the Supreme Court found too rigid, or procedural bars the Court found too expansive. Hunter and Keathley both involved doctrines, appellate-waiver enforcement and judicial estoppel, that the circuit had reduced to bright-line rules where the Supreme Court insisted on a more totality-of-the-circumstances inquiry. Pitchford involved a state-court waiver ruling the Fifth Circuit accepted as reasonable under the deferential standard of the Antiterrorism and Effective Death Penalty Act, when the Supreme Court concluded that ruling was both an unreasonable application of Batson and an unreasonable determination of the facts. Watson involved a preemption theory that read federal election-day statutes more expansively than their text supported. Chevron involved a removal statute the circuit had construed more narrowly than its “relating to” language allows. Taken together, the pattern looks less like a circuit reaching for ideologically charged outcomes and more like a circuit whose panels are comfortable adopting categorical, easily administrable rules, for waivers, for estoppel, for deference, for preemption, for removal, that the Supreme Court keeps unwinding in favor of more fact-specific, discretionary standards.

Panel composition still draws notice: the four cases decided this term by panels with a majority of Trump appointees were reversed in all four instances, and Raffi Melkonian, a Houston appellate practitioner, has pointed to the circuit’s unusually high rate of en banc review as a contributing factor: close, contested en banc splits create exactly the kind of unresolved controversy that tends to draw the Supreme Court’s attention.¹⁴ Melkonian’s broader observation is also worth sitting with. In his view, judges on the circuit generally do not treat reversal as evidence that they were wrong to rule as they did; they see their role as applying the law as they read it and treat Supreme Court disagreement as an acceptable cost of that approach. Whatever one thinks of that judicial philosophy, it has practical consequences: a Fifth Circuit panel is not obviously chastened by a high reversal rate, and counsel should not assume a panel will hedge toward a narrower ruling simply because the circuit has taken heat at the Supreme Court.

What the Pattern Means for Certiorari Odds and Litigation Strategy

For parties on the losing end of a Fifth Circuit ruling, the circuit’s reputation is, on balance, good news, at least at the certiorari stage. The Supreme Court’s docket is overwhelmingly discretionary, and a petitioner benefits from anything that makes a case look worth the Court’s limited argument calendar. A Fifth Circuit decision that breaks from a categorical rule the Court has been enforcing elsewhere, that conflicts with sister circuits, or that was decided over a vigorous en banc dissent now carries an additional signal: this is the circuit the Court has been correcting term after term, and this decision fits the pattern. That does not guarantee a grant, but it changes the framing of a cert petition. Counsel petitioning out of the Fifth Circuit have real reason to lean into that framing where the underlying decision fits the mechanical, rule-bound profile described above, rather than treating the circuit’s reputation as background noise.

For parties who won at the Fifth Circuit, the calculus cuts the other way. A favorable Fifth Circuit ruling, particularly one resting on a bright-line procedural rule, an expansive reading of a waiver or immunity, or a categorical application of deference, is a less durable asset than the same ruling from a circuit with a lower profile at the Supreme Court. That does not mean every Fifth Circuit win invites cert; the Court affirmed the circuit in three cases this term, including on questions, like RLUIPA’s individual-capacity liability, that were genuinely contested and not obviously outlier positions. But prevailing parties and their counsel should assess the durability of a Fifth Circuit win with real candor, rather than treating an affirmance below as the end of the matter, particularly where the case presents a circuit split.

Practical Guidance for Appellate Counsel

None of this changes the basic architecture of appellate decision-making, but it sharpens a few judgment calls counsel routinely face in cases heading toward, or coming out of, the Fifth Circuit.

First, counsel should look hard at whether a panel decision rests on a categorical or bright-line rule, because that is precisely the profile the Supreme Court has been targeting this term and in recent terms. A ruling that resolves a case through a rigid two-part test, an automatic bar, or an unqualified waiver doctrine is more exposed than one grounded in a multifactor or discretionary standard, and that exposure should inform both the decision to seek further review and the framing of the questions presented.

Second, counsel representing a party that lost before a Fifth Circuit panel should give real weight to en banc review before moving straight to a cert petition, without treating the two paths as mutually exclusive on timing. Given the circuit’s comparatively high rate of en banc consideration, a colorable case for rehearing can both correct the error internally and, if it fails on a divided vote, build a stronger cert petition. A fractured en banc denial is itself evidence of the kind of unresolved controversy that draws the Supreme Court’s interest.

Third, prevailing parties defending a favorable Fifth Circuit judgment should resist relying solely on the panel’s stated reasoning and should preserve alternative grounds for affirmance at every stage, precisely because a categorical rule that carried the day below may not survive Supreme Court review even where the ultimate result might. A judgment can be right for reasons the Supreme Court would accept even when the Fifth Circuit’s rationale is not, and counsel who have briefed and preserved those alternative grounds are far better positioned if certiorari is granted.

Fourth, counsel should track the doctrinal categories where the Supreme Court has already shown its hand this term, appellate waivers, judicial estoppel, AEDPA deference, removal statutes, and election-administration preemption, and should treat pending or future Fifth Circuit decisions in those same categories as higher risk even before a ruling issues, adjusting briefing strategy at the panel stage rather than waiting to see whether the panel adopts the more vulnerable, categorical approach.

Fifth, appellate counsel building the record at the trial court and panel levels should not assume the Fifth Circuit’s overall reversal rate makes any individual panel more receptive to preserving flexible, fact-intensive alternatives. If anything, since Fifth Circuit judges tend not to see reversal as validation of error, panels are unlikely to hedge on their own, so counsel must build the multifactor record that gives a reviewing court, en banc or in Washington, the tools to affirm on narrower grounds if the categorical rule does not hold.

Conclusion

Three consecutive terms atop the reversal list is not proof that the Fifth Circuit is simply wrong more often than its sister circuits. The picture is more specific than that, and more useful to litigators for being specific. This term’s pattern was less about ideology than about a recurring preference for administrable, categorical rules over the fact-intensive standards the Supreme Court keeps insisting on, in areas ranging from appellate waivers to election administration to federal officer removal. For appellate counsel with a Fifth Circuit practice, and particularly for those of us who also practice regularly in Mississippi’s federal courts within the circuit, the practical lesson is not to treat the reversal rate as a scoreboard, but to use it as a diagnostic. When a panel decision leans on a bright-line rule, plan the next stage of the case, en banc, cert, or both, with the circuit’s recent record squarely in view.