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The Fifth Circuit’s most recent opinion decides that United Airlines is not allowed to enforce a vaccination policy for its employees. Technically, the majority of Trump appointee Andy Oldham and W. appointee Jennifer Walker Elrod issued an unpublished, unsigned opinion reversing and remanding the lower court’s denial of a preliminary injunction, recognizing that plaintiffs would not suffer irreparable harm if they were required not to infect everyone around them for the duration of the suit.

Reaching the conclusion that the law should freeze the status quo every time an employee mounts a specious assertion that their religion prevents them from complying with employer mandates stretches existing law like taffy. No one suggests the employees couldn’t fully litigate their discrimination claims — the majority just demands that United, a private corporation, keep them working and contributing to an ongoing public health emergency while the claims run through the process. To reach this point, the Fifth Circuit had to take the stance that damages after the fact could never compensate a worker for unpaid leave.

To reiterate: that money damages could never compensate for a calculable loss of money.

It’s a conclusion they reach on the strength of… a dissenting opinion by conservative legal movement PR flack Judge James Ho claiming that “the earthly reward of monetary damages” can never compensate for a claimed religious grievance. Not only is that a dissent, but that case addressed the instance of a government mandate which — merits of that aside — amounts to a massively different question. Good luck building a working economy on that one once someone figures out showing up on time violates a newly invented religion.

It’s the Tinkerbell theory of discrimination: private enterprise doesn’t exist if you believe hard enough!

Apropos of absolutely everything, the United Airlines opinion comes from the exact same panel that forced Justice Department lawyer Joshua Koppel to travel to New Orleans and required him to not wear a mask during oral argument. But maybe Reagan appointee Jerry Smith, who was the judge who made the infamous mask request/not-so-much-a-request — and now faces a judicial conduct complaint over it — is down on masks because he believes in vaccines. Because while the other two judges extended the COVID culture war to bossing around private companies, Judge Smith seems content to limit the scope of his power to his own courtroom.

In a whopping 53-page dissent — signed off with a “respectfully but sternly dissent” — Judge Smith expresses unfettered rage at the audacity of the majority who “[i]n its alacrity to play CEO of a multinational corporation, the majority shatters every dish in the china shop.” As he sums up:

If I ever wrote an opinion authorizing preliminary injunctive relief for
plaintiffs without a cause of action, without a likelihood of success on the
merits (for two reasons), and devoid of irreparable injury, despite the text, policy, and history of the relevant statute, despite the balance of equitie and the public interest, and despite decades of contrary precedent from this circuit and the Supreme Court, all while inventing and distorting facts to suit my incoherent reasoning, “I would hide my head in a bag.” Perhaps the majority agrees. Why else shrink behind an unsigned and unpublished opinion?

More than once, Judge Smith evokes basic law school concepts noting, “As any law student can tell you” and “As anyone who has taken a federal-courts class in the past two decades will recognize,” which sounds unreasonably catty until you remember that, yeah, any law student or federal courts student should be able to get this right.

Over the course of 53-pages, one might think that Judge Smith’s ability to spit hot fire ebbs and flows, but every page is killer with no filler. These are mere highlights:

For every conceivable reason that the plaintiffs could lose this appeal, they should....

Notice how few of these facts appear in the majority opinion. They would get in the way of a good story.... Drew is not the only relic from the bygone era of judge-made remedies that the majority exhumes for attention....

It then invents a new per se rule: To show irreparable harm, a Title VII plaintiff need only allege “ongoing coercion because of a protected characteristic.” … Find that rule in the statute, our caselaw, or the law of any federal circuit. You won’t; it’s completely fabricated.... The plaintiffs have an adequate remedy at law. Indeed, that’s a gross understatement: Title VII confers enviable remedies....

The first premise is both wrong and irrelevant, and the second is nonsense that our precedent expressly forbids....

If, as the majority suggests, the plaintiffs did not plead that unpaid leave is an adverse employment action, then forget an injunction; no relief may issue....

The majority’s treatment of irreparable harm flouts blackletter law, the record, and even the Supreme Court. But I pause here to protest how the majority tortures our precedent to extract its desired result....

And so on. The dissent is so meticulous that some variation of “assume I’m wrong about all that, the majority still screws up” appears at least five times. Just a thoroughly devastating takedown.

Though perhaps his most insightful observation is where he zeroes in on the reality of the FedSoc clerkship pipeline:

It’s difficult to imagine what creative lawyers—not to mention federal judges spurred on by zealous law clerks—will do with these new tools. But a safe guess is that there will be more work for courts, more disruption and uncertainty for private business, and more power for judges. Whether those are good things is not up to us.

FedSoc pumps out ideologues to push judges right-ward as clerks, those clerks become judges, the next set of clerks push them right-ward. That a movement that once championed folks like Robert Bork for his willingness to turn the law into a rubber stamp for corporate power has morphed into rewriting at-will employment to satisfy the mob is amazing to watch. And without the fig leaf of fidelity to text, it’s one that’s about to get pretty wild.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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