Analysis of the Fifth Circuit Hearings

Written by scott on January 11th, 2015

Fifth Circuit New OrleansThere are several great summaries out there about what happened yesterday at the Fifth Circuit, which heard marriage equality appeals from Texas, Louisiana, and Mississippi. Among others, I recommend the summaries from Chris Johnson at the Washington Blade and Chris Geidner at Buzzfeed. I would like to go one step deeper. I have listened to the audio from the oral argument (as you can too, here). As with other oral arguments, I find the most insightful indication of how a judge is leaning is not the number of questions asked or to which lawyer he asks more, but the language and tone of those questions. I found that especially true with Judge Higginbotham (pictured, right) on Friday.

When analyzing oral arguments, I always caution that any connection between a judge’s questions and his or her ultimate decision is purely speculative. There are court-watchers who do studies about these things. But my reports on marriage equality hearings at the Fourth, Sixth, Seventh, Ninth, and Tenth Circuits, not to mention at the Supreme Court, suggest that we can draw conclusions. On all the metrics, it looks like marriage equality will win the day at the Fifth Circuit.

First, I will discuss those metrics. Then I will discuss where we go from here.

Questions Asked To Lawyers. This metric is based on the notion that appellate court judges tend to ask more questions to the side of the argument they are inclined to oppose. That makes some sense: you ask questions because you are skeptical. As a related point, the side peppered with more questions presumably has the tougher case to make, which makes it more likely to lose. Sometimes, a judge will lob a helping hand at a beleaguered attorney, but you can bracket those and come up with a simple analysis.

Authored By Ari Ezra Waldman – See the Full Story at

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3 Comments so far ↓

  1. kristine weibel says:

    I listened and enjoyed Mitchell’s demented defense of ‘love is a secondary component of marriage, second to procreation. I did not know that. In addition, I learned that my marriage, in Texas, is subsidized by the state. I did not know that either. I learned that to qualify for this subsidy you have to have children. I did not know that. Now, as I do not have children is my marriage subsidized or not? The entire hearing left me confused.

  2. Even if the three-judge panel of the United States Court of Appeals for the Fifth Circuit votes 2 to 1 against the bans (as it is likely to do), supporters of marriage equality should not yet cry victory because another hurdle — a much higher hurdle — would still have to be cleared in that circuit.

    For details, see “Report 159a — On 9 January 2015, it seemed that the three-judge panel would overturn all the bans in the Fifth Circuit by a vote of two to one — but, even if it does, that would not be the end of the story”

    (in “Equal Human Rights and Civil Rights for All Persons, No Matter Their Gender, No Matter Their Sexual Orientation: An Interpretive Newsletter,” at

  3. Mark says:

    Yes, Susan and Edward we know it could still get heard by the entire 5th circuit en banc. Each win including with the 3 judge panel is a victory and then we go onto the next step.

    I’ll add the 3 judge panel could rule for marriage equality without a stay and it could end up like Florida. I doubt the Supreme Court would stop it. Another realistic scenario.

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