Opinion: Clarence Thomas led Supreme Court majority in upholding consumer protections. What that means

Opinion by Steve Vladeck

(CNN) — On Thursday, Justice Clarence Thomas wrote for a 7-2 majority of the Supreme Court in upholding the way that Congress funds the Consumer Financial Protection Bureau (CFPB) — handing a major win to the Biden administration and preventing a disaster for consumers.

That top line may surprise you, but it shouldn’t. Not because Thomas has secretly become a liberal squish, but because the case only got to the Supreme Court because of a truly preposterous ruling by the Fifth Circuit — the court that hears all federal appeals from Louisiana, Mississippi and Texas.

Instead, the real headline from Thursday is not that the Supreme Court is more “moderate” than its critics often claim; it’s that there’s a court of appeals that is even more extreme — not just in this case, but in 10 other cases the Supreme Court will decide this term.

The specific question in Thursday’s case involved the scope of Congress’ power to appropriate funds for the operation of federal executive branch agencies. As opposed to a direct, annual appropriation (for example, “the Food and Drug Administration is appropriated the sum of $100 million for 2025”), Congress funds some agencies, including the CFPB, by authorizing them to draw funds from the Federal Reserve in whatever amount the agency deems “reasonably necessary to carry out” its duties, subject only to an annual cap.

So instead of yearly statutes that appropriate X dollars to an agency, Congress has provided agencies like the CFPB with open-ended authority to spend up to Y dollars.

The stakes of this case were enormous. Had the Supreme Court ruled the other way, all of the agency’s work on behalf of consumers could have been erased. The CFPB said in a statement that “for years, lawbreaking companies and Wall Street lobbyists have been scheming to defund essential consumer protection enforcement. The Supreme Court has rejected their radical theory that would have devastated the American financial markets. The Court repudiated the arguments of the payday loan lobby and made it clear that the CFPB is here to stay.” The agency says its enforcement work has saved consumers more than $20 billion.

At an even broader level, the argument against how Congress funds the CFPB could also have been used to go after the constitutionality of the Federal Reserve itself — with potentially cataclysmic financial consequences.

Every other lower court to consider the question has concluded that this form of budgeting is a choice Congress is allowed to make, since in both cases, Congress has (1) chosen to direct funds to an agency; and (2) limited the total amount. But the Fifth Circuit held otherwise.

Not only did a three-judge panel unanimously conclude that the Constitution prohibits Congress from such an open-ended (but limited) appropriation; four other judges on the same court embraced that theory in a different case. In other words, a theory that was too far to the right for even Thomas (let alone Chief Justice John Roberts or Justices Brett Kavanaugh and Amy Coney Barrett) commanded the support of seven of the Fifth Circuit’s 17 active judges — five of whom were appointed by former President Donald Trump.

In that respect, Thursday’s decision is representative of a pattern we’re likely to see over and over again this term — in which bipartisan Supreme Court majorities regularly slap down the Fifth Circuit in cases with clear ideological valences.

Indeed, the court has 11 different cases from the Fifth Circuit on its docket this term — a remarkably high number of appeals from a court that is dominated by Republican appointees. The Fifth Circuit has already been reversed in two of these cases; based on the oral arguments, reversals seem likely in at least seven of the remaining nine — on everything from whether Congress can prohibit those subject to domestic violence-related restraining orders from possessing firearms to whether doctors can seek to bar nationwide access to mifepristone because of how they might be harmed by having to treat patients experiencing the drug’s side effects in the future.

If, as seems likely, the Fifth Circuit ends up with the highest reversal rate this term, that would be the second term in a row — and a rather powerful sign that there is a widening chasm between (most of) the Republican appointees on the court of appeals and (most of) the Republican appointees on the Supreme Court.

But the radicalism of the Fifth Circuit also poses an instructive challenge for how we talk about the Supreme Court. Some of its defenders are quick to point to decisions like those in the CFPB case as proof that the court is more moderate than its critics often claim — and to the presence of a bipartisan majority as proof that the court isn’t as ideological as it’s often portrayed as being, either.

The problem with those claims is the same problem that infects most statistical claims about the court’s docket (for example, “The court was unanimous in 20% of its decisions!”): They don’t account for the courts from which the cases are coming.

Instead, the real takeaway from Thursday’s ruling — and from the broader pattern for which it is likely to be an exemplar — is that the current Supreme Court is less radical than the Fifth Circuit. But given the Fifth Circuit’s behavior in this case and others, that tells us a lot more about the federal appellate judges in Louisiana, Mississippi and Texas than it says about the justices in Washington.

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