We bid adieu to moonshots, Portals, and ad-free Netflix.
This was not a great year for Big Tech. In 2022, the economy slumped, stocks fell, inflation skyrocketed, and belts tightened. Silicon Valley was one of the hardest-hit places, partly because some of its companies had experienced such explosive and sustained growth for so long that it almost didn’t seem possible for that growth to stop or even slow down. And yet, here we are.
As quarterly earnings calls began to use ominous phrases like “economic headwinds” and business models were upended, tech companies realized it might be time to cut back on a few money-losing projects and initiatives. Some of them were big projects that companies put a lot of resources into, hoping that a few might pay off, and, in Google’s words, “redefine humanity.” With those resources drying up, efforts that might never come close to seeing the light of day became obvious targets for cuts. Some of what got cut were much less ambitious products or services that just weren’t profitable and the worsening economy made the runway to get them there much shorter.
And then there’s Meta, which is continuing to invest a tremendous amount of money into the metaverse — something that may never pay off — because Mark Zuckerberg insists it’s the future of his company and also the internet. But even those funds now have to come from somewhere else in the company.
While the end of certain things probably won’t do much for the future of our planet, the end of some of these humanity-redefining moonshots might be a bigger loss. Then again, none of them, with the possible exception of Waymo, ever really panned out. At least one of them — an Alphabet project called Mineral that wants to make food production more sustainable — is now being used by a berry grower to examine strawberries, which seems like the kind of thing that will help the berry grower and Google more than the rest of us.
Here are a few of the ambitious gambles and more grounded projects that didn’t pay off in 2022:
Meta had some big problems in 2022. The app privacy changes that Apple rolled out in 2021, which allowed users to opt out of being tracked across apps, cost the company billions. Meta relies on some of that data to target ads to you and to be able to tell businesses how those ads performed, thus enabling them to sell more ads for more money.
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Josh Edelson/AFP via Getty Images
Meta laid off more than 11,000 employees in November as its stock continued to plummet to historic lows. That reduction also meant saying goodbye to some of its non-metaverse hardware, a division that has never done much for Meta anyway. RIP Portal, the camera Facebook put in your kitchen. Also the smartwatch that never got a chance to see the world. Could Meta’s smart sunglasses be next? Also getting cut was the newsletter service Bulletin, which never caught on like Substack did (Twitter cut its own newsletter, Revue, although it’s not clear if the economy is to blame for that or whether Twitter’s new owner, Elon Musk, is). Meta’s experimental product arm is now reportedly shrinking to focus just on short videos (very TikTok!) and it recently shut down its connectivity division, which developed or improved ways to access the internet.
Google and its parent company, Alphabet, fared better than Meta in 2022. But things still weren’t great, and there are rumors that Google is due for some layoffs soon, too. Its famed “moonshot factory,” X, has a track record of flops even in the best of times. One X project, Loon, which tried to use weather balloons to beam internet to remote areas and was shut down in 2021, was spun off into an independent company. Area 120, Google’s incubator where employees got to work on experimental ideas for the company, has been scaled back. The Pixelbook, Google’s attempt to make an expensive Chromebook, has been discontinued. There are big cuts in the Google Assistant team. And Stadia, Google’s cloud gaming service, will be shutting down in January. Google also just pulled out of building a long-planned data center (Meta has also canceled work on data centers).
Amazon has also facing some problems. Layoffs are looming, and its stock price is down 50 percent in 2022 alone. The company is closing up or not going forward with plans to build several warehouse and delivery facilities. There are also product cutbacks, including the reported scaling back of Amazon’s voice assistant Alexa, which costs a lot and doesn’t make much (much like Google Assistant). Glow, a video calling device for children, is done just a year after its debut. Telehealth service Amazon Care will end when 2022 does — though Amazon also spent billions to acquire another primary care and telehealth service, One Medical, this year. The Grand Challenge lab, Amazon’s moonshot-like arm, reportedly shut down three out of five of its projects in October. And Wickr, an end-to-end encrypted messaging app Amazon acquired just last year, will end its free version at the end of 2023, which will also see the end of cloud storage service Drive.
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Olly Curtis/Future Publishing via Getty Imag
And then there’s Apple and Microsoft. They’ve been around longer and so have more experience with economic downturns, which might be why they’re both faring better than their rivals. Apple’s take on the VR headset is still reportedly on the way in 2023, though the mysterious Apple Car has apparently been scaled back (it won’t be fully autonomous) and delayed another year. That might have more to do with the technology not being there than the economy. Apple is expanding its ad offerings, though, which might be a way to bring in extra revenue at a time when people are cutting back, possibly including on their purchases of Apple devices. As for Microsoft, it had some layoffs in 2022 and seems to be putting its efforts to move back into the consumer market on pause. Its HoloLens VR headset also seems to be having some issues. But the company has been through much worse times and had far more expensive flops over the years.
There are also a few Big Tech-adjacent cuts. Snap, which was particularly hard hit by changes in the advertising industry, discontinued its short-lived selfie drone, Pixy, as its stock tanked and it laid off thousands of employees. Snap is also getting more aggressive about monetizing its AR arm. Kitty Hawk, a Larry Page-backed attempt to create flying cars, made an emergency landing into reality and shut down. Twitter was decimated, but we can safely blame that on other factors.
Some streaming platforms are struggling, too. Netflix, once one of the biggest success stories in the business, is losing subscribers and has had to introduce ads, which was a longtime no-go for the company. Disney+ just rolled out its own lower-priced ad tier while bumping up the price of its ad-free offering. The Warner Media-Discovery merger led to some major changes and cuts. CNN+ was live for less than a month, while HBO Max shut down several projects that were in the works and removed other shows from the platform entirely.
So, yeah, not a great year for Big Tech, Big Tech-adjacent companies, and cool experiments that needed many years and dollars to have a chance of success. The buzzwords that promised to be the future of the industry at the beginning of this year — Web3, the metaverse, crypto — have flamed out for now, if not forever. We’re only just seeing the potential of generative AI, an effort that’s led not by a tech giant but by a relatively new company called OpenAI. For all of its money-burning moonshot projects, Big Tech might have missed the boat on its own future. At least until the next big thing comes along.
SBF and EA, animal welfare and economic growth, and why we’re running short of people.
Roughly a year ago, I joined Future Perfect as its lead editor. The decision was a no-brainer for me. Where else could I be deeply involved in directing, editing, and occasionally writing stories about the most important yet undercovered topics in the world?
Looking back on my first year through our most read stories in 2022, I can say that our coverage definitely hit important subjects, but not always ones that were undercovered. That’s because this was the year that effective altruism — the philosophical and philanthropic movement that helped inspire this section — went from background to foreground.
First, earlier this year, new waves of money and a new focus on longtermism made EA as close to a household name as anything with roots in esoteric reaches of utilitarian philosophy can be. And then the source of much of that money — FTX co-founder Sam Bankman-Fried — saw his company collapse amid allegations of fraud that culminated in his arrest in the Bahamas earlier this month. (Disclosure: This August, Bankman-Fried’s philanthropic family foundation, Building a Stronger Future, awarded Vox’s Future Perfect a grant for a 2023 reporting project. That project is now on pause.)
But if EA itself was the single biggest story Future Perfect covered this year, it was far from the only one. From the lingering effects of the Covid-19 pandemic to the mysteries of economic growth to the fate of billions of farm animals, our most read stories in 2022 hit every corner of Future Perfect’s interests.
- “Sam Bankman-Fried tries to explain himself” by Kelsey Piper
This story from mid-November — a late-night interview conducted by Twitter DMs with perhaps the most newsworthy person of 2022 — wasn’t just the most read story on Future Perfect. It was the most read story of the year on Vox, period.
Though Bankman-Fried would go on to conduct a wide-ranging and legally baffling media tour in the weeks that followed his company’s shocking implosion, he would never be as candid as he was to Kelsey, answering questions on what went wrong and what he was thinking. It’s hard to pick the most eyebrow-raising answer, but I’ll go with this one, in response to a question about the real motivations behind his pre-collapse campaign to beef up cryptocurrency regulations: “Fuck regulators. They make everything worse.”
- “The incredible shrinking future of college” by Kevin Carey
Supply and demand are the twin forces that rule our world. And for decades, the American higher education system benefited from both — a generally rising supply of college-age young people, and growing demand for the benefits of a college degree.
But as Kevin Carey of New America wrote in this November piece from Future Perfect’s edition of The Highlight, colleges are grappling with an existential turnaround in both supply and demand. Demographic shifts mean that the number of college-age Americans will continually dwindle, while the declining economic value of the average college degree is denting demand, especially among men. That means we’ll likely see college after college vanish in the years ahead, with grim implications for the small towns that depend on them.
- “Omicron is exploding. Here’s what to do if you’ve been exposed.” by Sigal Samuel
It says something about how long the Covid-19 pandemic has been with us that I was almost surprised to see this story from early January in our number three spot. But omicron, which only began spreading in the US a little more than a year ago, took the pandemic to an entirely new level. While vaccines still provided robust protection against hospitalization and death, especially for younger people, they were far less effective against infection — which made the tips Sigal highlighted in this story incredibly valuable.
- “AI experts are increasingly afraid of what they’re creating” by Kelsey Piper
When we look back on 2022 in 10 or 15 or 20 years’ time, we may decide that the most important topic of the year wasn’t inflation or the Ukraine war or, god forbid, Elon Musk buying Twitter, but rather the astounding developments that occurred this year in the field of artificial intelligence, as ChatGPT became the first AI language product to really hit the masses. That, of course, assumes we’ll still be around in 10 or 15 or 20 years’ time. In this piece from Future Perfect’s November Highlight edition, Kelsey explained why some of the people who best understand the bleeding edge of AI are also the people who are more worried about what their creation may do.
- “22 things we think will happen in 2022” by Dylan Matthews, Kelsey Piper, and Sigal Samuel
When the name of your section is Future Perfect, predictions about the future are hard to avoid. But we’ve made it an annual habit at the start of the year not just to put our divination in writing, but to append probabilities to those forecasts — and to check back in a year’s time to see how we’ve done. We think this epistemic honesty should be less unusual in our line of work. You can look later this week for our piece reviewing how those predictions turned out, but let me just say that I hope that Dylan — who was relatively sure Kenneth Branagh’s quickly forgotten film Belfast would win Best Picture at the Academy Awards this year — didn’t wager his salary at the office Oscar pool.
- “How the Fed ended the last great American inflation — and how much it hurt” by Dylan Matthews
2022 will be remembered as the year that the long-vanquished demon of inflation came roaring back with a vengeance. In fact, it had been so long since rising prices were a major drag on the US economy that Dylan had to go back decades to find the last time the Federal Reserve had to take extreme measures to curb inflation. (How long ago? Then-Fed Chair Paul Volcker is depicted in the story’s main photo smoking a cigar while testifying to Congress.) There’s a lot to learn from this piece, but here’s my main takeaway: The policy cure to runaway inflation is only slightly better than the disease.
- “About 200 years ago, the world started getting rich. Why?” by Dylan Matthews
At Future Perfect, we like our stories to take a wide scope, but it’s not every piece that begins 300,000 years ago, as Homo sapiens began our long, slow crawl to the top of the planetary food chain. How we got here is, at root, the story of economic growth, and like a ponderous movie with a fantastic climax, it really only takes off in the last few pages. In an interview in June with the economists Jared Rubin and Mark Koyama, the authors of the excellent economic history How the World Became Rich, Dylan explored the story of what changed around 200 years ago, when, after millennia of little more than flat lines, economic growth skyrocketed. And in doing so, it did more than anything else to make the world we live in today.
- “Costco’s inflation-proof $4.99 rotisserie chicken, explained” by Kenny Torrella
Call me an out-of-touch East Coast elite, but I’ve never actually had Costco’s famous $4.99 rotisserie chicken (though I did get a steady supply of Costco diapers and baby wipes delivered during my son’s infancy). Turns out it’s a whole thing — it even has its own Facebook fan page. But in a penetrating story in July, Kenny showed how Costco’s dirt-cheap chicken — purposely sold at a loss to get customers through the door — is a symbol of an industrialized food system that damages the environment, harms workers, and causes untold suffering to farm animals, all in the name of a low-cost dinner.
- “How you can get free N95 masks from the US government” by Muizz Akhtar
How intense was the fear around the omicron variant a year ago? Strong enough that a straightforward explainer from January about how to get the free N95 masks the Biden administration was providing easily made our top 15 for the year. Though 400 million masks were made available, as the omicron wave waned and vaccines held up against death, fewer and fewer of them were put to use. That may not be the case for much longer, though — earlier this month, the Centers for Disease Control and Prevention once again encouraged Americans to wear masks in crowded indoor areas, this time to protect themselves and others against the tridemic of Covid, flu, and RSV.
Violent crime returned as a social scourge during the pandemic, though for some parts of the world, like the West African nation of Liberia, it never left. But while American politicians were debating gun laws and sentencing practices, the University of Chicago economist Chris Blattman was hard at work on another option: offering direct cash benefits and targeted therapy to men in Liberia who were most at risk of violent behavior. Research published by Blattman and his colleagues in May found that these twin interventions reduced the future risk of crime and violence, with effects still seen 10 years after the fact. Blattman is now at work importing those practices to Chicago, where more than 600 people were killed in 2022.
- “Humanity was stagnant for millennia — then something big changed 150 years ago” by Dylan Matthews
How’s this for an opening line: “The 140 years from 1870 to 2010 of the long twentieth century were, I strongly believe, the most consequential years of all humanity’s centuries.”
It comes from the brilliant book Slouching Towards Utopia: An Economic History of the Twentieth Century by historian Brad DeLong, whom Dylan interviewed for this piece in September. The conversation is full of fascinating historical nuggets, like the fact that the average number of years that a woman spent either pregnant or breastfeeding declined from 20 in 1870 to just four today. Collected together, they make a compelling case that the turbocharged economic growth that began in the late 19th century fundamentally changed human life for the better, though not without caveats. It’s a fact that we, living in the aftermath of DeLong’s long 20th century, too often fail to appreciate.
- “The Supreme Court is about to decide the fate of millions of pigs” by Kenny Torrella
It wasn’t the most historic case on the Supreme Court’s docket this past year, but few legal battles have ever affected this many living beings. As Kenny described in his piece from October, National Pork Producers Council v. Ross “hinges on a simple question: Can California set its own standards for how pigs are treated on farms, even when they’re raised in other states?” Yet the legal questions that were argued before the Court went to the heart of what the meat industry should be permitted to do to the millions of pigs on its farms — and what individual states are allowed to do to change that often horrific system. We won’t know the Court’s ruling until next year, but we know its decision will resonate from farm all the way to table.
A default question behind both international news coverage and international philanthropy is this: What can rich nations do to help poor nations? But in this November story from Future Perfect’s edition of the Highlight, Sigal turns the question on its head.
Like the US, many nations in the Global South are suffering through mental health crises, a problem compounded by the fact that they have far fewer mental health professionals per capita than rich nations. But, as Sigal shows, the future of sustainable mental health care could take the form of the kind of community-based approaches being pioneered in countries like Ghana, featuring a “therapy that teaches people the skills to devise their own solutions to the problems they face.”
- “Americans keep moving to where the water isn’t” by Bryan Walsh
Hey, I know that guy! I was inspired to write this story in August by a simple question: Why, as the effects of climate change like heat waves and droughts became ever more apparent, do Americans keep moving to those parts of the country most vulnerable to warming?
Ten of the 15 US counties that saw the most population growth in 2021 were in the water-starved Southwest, while the 50 US counties with the least vulnerability to climate change lost more people than they gained. As it turns out, the desire for relatively cheap housing, a robust local economy, and as many weeks of sunshine as you can find outweighs climate fears for most Americans, in a perfect illustration of what economists would call “revealed preferences.”
- “The great population growth slowdown” by Bryan Walsh
This story from January was the first one I published on Future Perfect, and it just made the top 15. (Maybe I should have quit while I was ahead.) It was also the first of several I wrote this year about what I believe is one of the most important trends facing the US and the world: slowing population growth.
As I noted, the US population grew by just 0.1 percent in the year between July 2020 and July 2021 — the lowest growth rate in the nation’s history. There are multiple explanations, but they boil down to this: fewer people having fewer babies, and, in the US at least, fewer immigrants arriving on our shores. Both trends have improved a bit over the past year, which I’d argue is welcome news. Slow population growth is a recipe for economic sluggishness and cultural sclerosis. And if you’d like to know more, you can read the 4,568 words I published on the subject in November.
The United States Court of Appeals for the Fifth Circuit is where law goes to die.
Trent Taylor says his cell, in a Texas psychiatric unit operated by the state’s prison system, was covered in human excrement. Feces smeared the window and streaked the ceiling. Someone had painted a shit swastika on the wall, alongside a smiley face. According to Taylor’s allegations in a federal lawsuit, there was such a thick layer of dried human dung on the floor of the cell that it made a crunching sound as he walked naked across the cell.
Taylor alleged that he was kept in this cell for four days, where he neither ate nor drank due to fears that the excrement, which was even packed inside the cell’s water faucet, would contaminate anything he consumed. Then, on the fifth day, he was moved to a bare, frigid cell with no toilet, water fountain, or bed. A clogged drain filled the new cell with choking ammonia films. With nowhere to relieve himself, Taylor held his urine for 24 hours before he could do so no longer. And then he had to sleep alone on the floor while covered in his own waste.
The Supreme Court eventually ruled 7–1 that Taylor’s lawsuit against the corrections officers who forced him to live in these conditions could move forward, and that lawsuit settled last February. But the Supreme Court had to intervene after an even more conservative court, the United States Court of Appeals for the Fifth Circuit, attempted to shut down these claims against the prison guards.
A unanimous panel of three Fifth Circuit judges held that it was unclear whether the Constitution prevents prisoners from being forced to remain in “extremely dirty cells for only six days” — although, in what counts as an act of mercy in the Fifth Circuit, the panel did concede that “prisoners couldn’t be housed in cells teeming with human waste for months on end.”
This decision, in Taylor v. Stevens, is hardly aberrant behavior by the Fifth Circuit, which oversees federal litigation arising out of Texas, Louisiana, and Mississippi. The Fifth Circuit’s Taylor decision stands out for its casual cruelty, but its disregard for law, precedent, logic, and basic human decency is ordinary behavior in this court.
Dominated by partisans and ideologues — a dozen of the court’s 17 active judgeships are held by Republican appointees, half of whom are Trump judges — the Fifth Circuit is where law goes to die. And, because the Fifth Circuit oversees federal litigation arising out of Texas, whose federal trial courts have become a pipeline for far-right legal decisions, the Fifth Circuit’s judges frequently create havoc with national consequences.
The Fifth Circuit has, in recent months, declared an entire federal agency unconstitutional and stripped another of its authority to enforce federal laws protecting investors from fraud. It permitted Texas Republicans to effectively seize control of content moderation at social media sites like Twitter, Facebook, and YouTube. Less than a year ago, the Fifth Circuit forced the Navy to deploy sailors who defied an order to take the Covid vaccine, despite the Navy’s warning that a sick service member could sideline an entire vessel or force the military to conduct a dangerous mission to extract a Navy SEAL with Covid.
As Justice Brett Kavanaugh wrote when the Supreme Court restored the military’s command over its own personnel, the Fifth Circuit’s approach wrongly inserted the courts “into the Navy’s chain of command, overriding military commanders’ professional military judgments.”
And this is just a small sample of the decisions the Fifth Circuit has handed down in 2022. Go back just a little further, and you’ll find things like a decision endangering the First Amendment right to protest, or another that seized control over much of the United States’ diplomatic relations with the nation of Mexico. In 2019, seven Fifth Circuit judges joined an opinion that, had it been embraced by the Supreme Court, could have triggered a global economic depression unlike any since the 1930s.
Its judges embrace embarrassing legal theories, and flirt with long discredited ideas — such as the since-overruled 1918 Supreme Court decision declaring federal child labor laws unconstitutional. They abuse litigants and even each other. During a 2011 oral argument, the Court’s then-chief judge, Edith Jones, told one of her few left-leaning colleagues to “shut up.”
And while the Fifth Circuit is so extreme that its decisions are often reversed even by the Supreme Court’s current, very conservative majority, its devil-may-care approach to the law can throw much of the government into chaos, and even destabilize our relations with foreign nations, before a higher authority steps in. Worse, the Fifth Circuit’s antics could very well be a harbinger for what the entire federal judiciary will become if Republicans get to replace more justices.
The median Fifth Circuit judge is very far to the right — more so than the Court’s current median justice, Brett Kavanaugh. But the typical Fifth Circuit judge would also be quite at home alongside a Republican stalwart like Justice Samuel Alito, or a more nihilistic justice like Neil Gorsuch.
How the Fifth Circuit became a far-right playground
Two generations ago, the Fifth Circuit was widely viewed as a heroic court by proponents of civil rights, handing down aggressive decisions calling for public school integration and protecting voting rights — even in the face of opposition from other, prominent judges.
Very soon after Brown v. Board of Education (1954) determined that racially segregated public schools violate the Constitution, a panel of federal judges in South Carolina handed down an influential opinion, in Briggs v. Elliott (1955), that effectively strangled Brown in its cradle. Brown, the court claimed in Briggs, “has not decided that the states must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they attend.” To comply with Brown, Briggs suggested, a state must merely offer Black children the choice to attend white schools — and if those children choose to remain in segregated classrooms, that’s not a constitutional problem.
As a practical matter, these “freedom to choose” plans led to very little integration, in no small part because African American families knew full well what the Ku Klux Klan might do to them if they volunteered to send their children to a historically white school. Ten years after Briggs, the Fifth Circuit noted in United States v. Jefferson County Board of Education (1967), the South Carolina school system at the heart of the Briggs case was “still totally segregated.”
Jefferson County was authored by Judge John Minor Wisdom, arguably the greatest of the Fifth Circuit’s judges, whose name adorns the court’s building in New Orleans today. After watching Briggs’s approach fail Black children for 10 long years, Wisdom wrote a lengthy, statistics-laden opinion savaging Briggs and insisting that “the only school desegregation plan that meets constitutional standards is one that works.”
“The Brown case is misread and misapplied when it is construed simply to confer upon Negro pupils the right to be considered for admission to a white school,” Wisdom wrote. “The Constitution is both color blind and color conscious,” he wrote, anticipating modern-day attacks on affirmative action. It must be read “to prevent discrimination being perpetuated and to undo the effects of past discrimination.”
At the time, the Fifth Circuit’s jurisdiction extended over six Southern states, stretching from Texas to Florida (the court was split in half and three of these states were reassigned to a new Eleventh Circuit by a 1980 law), so the aggressive approach to desegregation laid out in Wisdom’s Jefferson County opinion bound many of the states where the need for public school integration was most urgent.
Beginning in the 1980s, however, Wisdom’s influence within his court began to fade. Republican President Ronald Reagan appointed a total of eight judges to the Fifth Circuit — one of whom was Edith Jones, a thirtysomething former general counsel to the Texas Republican Party. President George H.W. Bush added another four judges. The result was that, by 1991, Wisdom complained that his court’s approach to race in education was so harsh that it would even violate the separate-but-equal approach announced in the Supreme Court’s infamous Plessy v. Ferguson (1896) decision.
If any one decision captures the spirit of the post-Reagan, but pre-Trump Fifth Circuit, it’s that court’s decision in Burdine v. Johnson (2000). In that case, a man was convicted of murder and sentenced to die after his court-appointed lawyer slept through much of his trial. One witness recalled that the lawyer fell asleep as many as 10 times. Another testified that the lawyer “was asleep for long periods of time during the questioning of witnesses.”
And yet, a panel of Fifth Circuit judges that included Judge Jones initially voted to let this death sentence stand because it was unable to determine whether the lawyer “slept during the presentation of crucial, inculpatory evidence,” or merely through portions of the trial that the panel deemed unimportant. Eventually, the full Fifth Circuit reheard Burdine and held that the death row inmate at the heart of the case must be retried — but it did so over the dissents of five Fifth Circuit judges.
And the Fifth Circuit has only grown more conservative since these five judges determined that it was no big deal that a capital defendant’s lawyer couldn’t even remain awake throughout his trial.
Trump’s appointees turned the Fifth Circuit into a farce
When former President Donald Trump took office, the Fifth Circuit was already one of the most conservative courts in the country. It also had two vacancies due to a boneheaded decision by former Senate Judiciary Committee Chair Patrick Leahy (D-VT) to give Republican senators a veto power over anyone nominated to a federal judgeship in their home state — thus preventing President Barack Obama from filling these seats during his time in office.
To the first of these two seats, Trump appointed Don Willett, a libertarian provocateur known for speckling his opinions with the kind of platitudes that one might hear from a member of the John Birch Society, a member of the Tea Party, or a participant in the January 6 putsch. Sample quote: “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.”
And then there was James Ho, the former law clerk to Justice Clarence Thomas who labeled abortion a “moral tragedy” in one of his first opinions as a judge. Ho’s very first opinion sought to implement a proposal he first announced in a 1997 op-ed to “abolish all restrictions on campaign finance.” The opinion declared that “big money in politics” was a “necessary consequence” of “big government in our lives.” It also claimed that our current government “would be unrecognizable to our Founders” because the Affordable Care Act exists.
Another Trump judge on the Fifth Circuit, Cory Wilson, published a series of columns in Mississippi newspapers that raise serious questions about his ability to apply the law impartially to Democrats and to LGBTQ Americans. Among other things, Wilson claimed that “intellectually honest Democrat[s]” are “very rare indeed.” He called President Obama a “fit-throwing teenager” because he opposed a Republican proposal to slash Medicaid funding and repeal Medicare and replace it with a voucher program. He wrote that “gay marriage is a pander to liberal interest groups and an attempt to cast Republicans as intolerant, uncaring and even bigoted.” And he also had a Twitter feed that often resembled Trump’s.
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Internet Archive Wayback Machine
Another Trump judge on the Fifth Circuit, Kyle Duncan, spent much of his career as an anti-LGBTQ lawyer. He may be best known for an opinion he authored as a judge, which refused a transgender litigant’s request that Duncan use her proper pronouns.
Duncan also joined an opinion, authored by Trump-appointed Judge Kurt Engelhardt, which blocked a Biden administration rule requiring most workers to either get vaccinated against Covid-19 or take weekly Covid tests. The Supreme Court eventually struck this rule down under a legally dubious, judicially created legal doctrine called “major questions.”
But Engelhardt’s opinion makes this Supreme Court look sensible and moderate. Although federal law permits the Occupational Safety and Health Administration to issue emergency rules to protect workers from “exposure to substances or agents determined to be toxic or physically harmful,” Engelhardt made the extraordinary argument that the novel coronavirus — which has killed over a million Americans — does not qualify as a “substance or agent” that is “physically harmful.”
Nor did Engelhardt stop there. His most aggressive argument implies that the federal government’s power to regulate commerce does not extend to the workplace, which is the same argument the Supreme Court used in a discredited 1918 decision striking down federal child labor laws.
Trump, in other words, took a court that was already a reactionary outlier among the federal courts of appeal, and filled it with judges from the fringes of the legal profession. And those judges gleefully sow chaos throughout the law.
Why the Fifth Circuit in particular can cause so much chaos
One reason why the Fifth Circuit’s decline is so harmful to the nation as a whole is that it oversees federal litigation arising out of Texas.
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. And because those courts often permit plaintiffs to choose which judge will hear their lawsuits, these challenges frequently go before highly partisan judges who issue nationwide injunctions blocking that policy. And then those decisions, which frequently have glaring legal errors that would be obvious to many first-year law students, go to the Fifth Circuit.
This practice has been a particular thorn in the side of the Department of Homeland Security, as Texas has repeatedly obtained orders from Trump judges blocking the Biden administration’s immigration policies. One even forced the United States to change its diplomatic posture regarding Mexico.
One of the federal appeals’ courts most important roles is to keep a watchful eye over federal trial judges, and make sure they don’t issue disruptive, idiosyncratic decisions — or, at least, to make sure that those decisions don’t remain in effect for long. But the Fifth Circuit almost always operates like a rubber stamp for the Trumpiest judges, blessing even the most extreme decisions by trial judges who hope to sabotage Biden’s policies.
Just as often, the Fifth Circuit hands down decisions that seem to come out of nowhere, embracing legal theories that few lawyers have ever even heard of before, and that threaten to shut down much of the federal government and disrupt the nation’s economy. Consider, for example, Community Financial Services v. CFPB (2022), a decision by three Trump judges (Willett, Engelhardt, and Wilson), which declared the entire Consumer Financial Protection Bureau unconstitutional.
The Fifth Circuit’s opinion, by Wilson, claims that the agency is unlawful because of the unusual way that it is funded — rather than receiving an annual appropriation from Congress, the CFPB receives a portion of the funds raised by the Federal Reserve. Wilson claims that this funding structure “violates the Constitution’s structural separation of powers.”
But he’s just plain wrong about that, and his legal reasoning was explicitly rejected by the Supreme Court more than eight decades ago. Wilson relied on a provision of the Constitution stating that “no money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” But, as the Supreme Court held in Cincinnati Soap Co. v. United States (1937), this provision “means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.”
Because there is an Act of Congress creating the CFPB and its funding structure, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the CFPB is constitutional. Wilson’s opinion relies on a fantasy constitution that does not exist.
Three years before its CFPB decision, seven Fifth Circuit judges signed onto another opinion that would have destroyed another entire federal agency — and potentially triggered a worldwide economic depression in the process.
The Federal Housing Finance Agency (FHFA) was created in 2008 to deal with the mortgage crisis that triggered a historic recession, and that very well could have led to a second Great Depression if the FHFA had not acted. Over the course of the next several years, the FHFA presided over tens of billions of dollars worth of transactions intended to prop up the US mortgage system and ensure that the American housing market did not collapse.
About a dozen years after the FHFA was created, however, the Supreme Court determined that federal agencies may not be led by a single individual who cannot be fired at will by the president. By law, the FHFA director enjoyed some protections against being fired, and there’s no question that this decision required her to be stripped of these protections.
But in Collins v. Mnuchin (2019), seven Fifth Circuit judges joined an opinion by Judge Willett, which argued that this minor constitutional violation — a violation the Supreme Court didn’t even recognize until years after the FHFA was established — renders everything the FHFA has ever done invalid. When a plaintiff who is injured in any way by one of the FHFA’s actions files a federal lawsuit challenging that action, Willett claimed, the “action must be set aside.”
The immediate impact of Willett’s opinion, had it taken effect, would have been to force the FHFA to unravel more than $124 billion worth of transactions it undertook to rescue the US housing market — more than the gross domestic product of the entire nation of Ecuador. But Willett’s opinion would have gone even further than that, because it would have permitted suits invalidating literally anything the FHFA had ever done since its creation in 2008.
In any event, the Collins case eventually made its way to the Supreme Court, where the justices voted 8 to 1 to reject Willett’s approach. Only Justice Neil Gorsuch thought that toying with an economic depression was a good idea.
But even when the Supreme Court does step in, eventually, to reverse the Fifth Circuit, it often drags its feet. When a notoriously partisan federal trial judge ordered the Biden administration to reinstate much of Trump’s border policy, and the Fifth Circuit rubber stamped that decision, the Supreme Court waited 11 months to intervene — leaving the lower court’s decisions imposing a defeated president’s policies on the nation in place the entire time. A similar drama played out over immigration enforcement.
The result is that the Fifth Circuit, though it does not have the final say, often decides what US policy should be for months at a time. And that’s assuming that the Supreme Court actually reverses the Fifth Circuit — sometimes the Fifth Circuit’s most legally dubious decisions are embraced by a Supreme Court dominated by Republican appointees.
If the Fifth Circuit behaves this badly when powerful litigants are before them, imagine what it is like for the powerless
One of the few good things that can be said about the Fifth Circuit is that it does not have the last word about what the law says. When its judges strike down a federal law, or attempt to destroy an entire federal agency, or declare a national policy unconstitutional, the Supreme Court almost always steps up to hear that case. And the justices do frequently reverse the Fifth Circuit’s most outlandish decisions — even if they take their sweet time before they do so.
But the Supreme Court only hears a tiny percentage of the cases decided by federal appeals courts, and it almost never hears cases brought by extraordinarily vulnerable litigants like Trent Taylor. Indeed, it hears these cases so infrequently that, when the Court decided to intervene on Taylor’s behalf, Justice Samuel Alito wrote a brief opinion complaining that Taylor’s case “which turns entirely on an interpretation of the record in one particular case, is a quintessential example of the kind that we almost never review.”
The Fifth Circuit hears a steady diet of ordinary immigration cases, which will often decide whether an individual immigrant can remain with their family in the United States or whether they must be deported to a nation they may barely know, or where they may fear for their physical safety. These cases are now heard by judges like Andrew Oldham, Trump’s sixth appointment to the Fifth Circuit, who spent much of his time both on and off the bench seeking to make federal immigration policies harsher to immigrants.
Similarly, the court hears a steady diet of employment discrimination cases. These cases are heard by judges like Edith Jones, who dissented in a 1989 case ruling in favor of Susan Waltman, a woman who experienced the kind of sexual harassment that would make any normal person’s skin crawl:
During the summer of 1984, an IPCO employee told a truck driver that Waltman was a whore and that she would get hurt if she did not keep her mouth shut. Later, in the Fall of 1984, several other incidents occurred. A Brown and Root employee, who was working at the mill, grabbed Waltman’s arms while she was carrying a vial of hot liquid; another Brown and Root worker then stuck his tongue in her ear. In a separate incident, an IPCO employee told Waltman he would cut off her breast and shove it down her throat. The same employee later dangled Waltman over a stairwell, more than thirty feet from the floor. In November 1984, one employee pinched Waltman’s breasts. In another incident, a co-worker grabbed Waltman’s thigh.
Jones claimed that Waltman’s employer “did not have actual or constructive notice that Waltman was subjected to a pervasively abusive and hostile work environment,” but Waltman complained multiple times to her supervisors, met with senior managers about the harassment she faced, and announced her intention to resign after a shift meeting where her coworkers made comments that “women provoke sexual harassment by wearing tight jeans” in front of her supervisor.
And then, after determining that these conditions do not amount to actionable sexual harassment, Jones spent the next 33 years hearing other cases brought by workers alleging employment discrimination.
The Fifth Circuit has created a void in the law, where judges ignore horrific violations in between writing opinions claiming that entire federal agencies are unconstitutional. And, barring legislation adding additional seats to the court, things are unlikely to get better anytime soon. Currently, Republican appointees hold 12 of the 17 active judgeships on this benighted court — and nearly all of them are ideologically similar to Jones.
That said, there are reforms that Congress or the Supreme Court could implement, which would diminish both the Fifth Circuit’s power and the power of litigants to channel political lawsuits to highly ideological judges. Congress, for example, may strip the Fifth Circuit of its jurisdiction over certain cases, or require certain suits to be filed in a federal court that is not located in the Fifth Circuit. It could also add seats to the court, which would then be filled by President Biden.
A less radical reform, proposed by former Fifth Circuit Judge Gregg Costa, would prevent litigants like the Texas AG’s office from handpicking judges who are likely to rule in their favor — and whose decisions are equally likely to be affirmed by the Fifth Circuit. Costa proposed having all lawsuits seeking a nationwide injunction against a federal law or policy be heard by three-judge panels, rather than a single judge chosen by the plaintiff. These panels’ decisions would then appeal directly to the Supreme Court, bypassing the Fifth Circuit (although a single Fifth Circuit judge might sit on some of these panels).
Realistically, however, systemic reforms to the problem of judge-shopping — and to the problem of a lawless court of appeals — are unlikely to happen anytime soon. The House of Representatives will soon be controlled by Republicans, who are unlikely to support legislation that reduces the power of their partisan allies on the bench. And the Supreme Court has six justices appointed by Republican presidents.
And so the Fifth Circuit will continue to hand down its decrees, confident that no one with the power to stop them is likely to do so.