Each year, Take the Fifth blog compiles and analyzes key statistics from the opinions issued by the U.S. Court of Appeals for the Fifth Circuit. While the Fifth Circuit itself compiles and releases statistics on a July-to-June period, we run our analysis on an October-to-September period to coincide with the U.S. Supreme Court’s term, and also try to capture different and more granular forms of data. Following are a few of Take the Fifth’s observations from the October 1, 2024, through September 30, 2025, period.
Personnel Changes
Judge Elrod was elevated to Chief Judge in place of Judge Richman, who nevertheless remains active-status, bringing the number of judges to 25, with 17 active-status and 8 senior-status. Judge Duhé passed away on May 16th this year. Though he had not been participating in panels for some time, he remained on the roster of senior-status judges. Active-status judges who are currently eligible to take senior-status include Judges Jones, Smith, Stewart, Richman, Southwick, Graves, and Engelhardt. In October of this year, Judge Jolly has become inactive senior-status.
Key Trends + Observations
During the 2024-2025 term, the Fifth Circuit issued a total of 2,424 opinions, 9 more than the total opinions released in the 2023-2024 year. 1,980 were full affirmances (or appeal dismissals), which, when calculating in the 129 denials of petitions for review of Board of Immigration Appeals decisions and other agency orders, resulted in an 87% affirmance rate across all appeal types (up from last year’s 84.79% affirmance rate); 79 were partial affirmances/partial reversals/vacaturs; 99 were full reversals; 2 were orders regarding mandamus (both grants); 104 were full vacaturs; 3 were certifications of questions to state supreme courts; 12 were published orders denying en banc rehearing (down slightly from 13 last year); 7 were grants of en banc rehearing (up slightly from 6 last year); 123 were denials or dismissals of petitions for review of BIA decisions; 7 were grants of petitions to review BIA decisions; 6 were denials of petitions to review other agency decisions; 12 were grants of petitions to review other agency decisions; 2 were motion denials; and 4 were grants of motions.
En Banc and Supreme Court Activity
The number of published orders denying en banc rehearing (12), which occurs when a member of the Court authors a separate dissent from or concurrence with the denial of rehearing to highlight a particular point involved in the rehearing vote, and the number of grants of en banc rehearing (7) moved slightly from last year’s numbers (13 and 6, respectively).
Notably, there are currently nine of the 43 U.S. Supreme Court cases accepted for that Court’s 2025-26 Court Term that are from the Fifth Circuit (a tenth was dismissed from the Supreme Court’s merits docket), a disproportionate representation of Fifth Circuit decisions on the Supreme Court docket matching the trend from recent terms.
Appeals by District Court
The Northern District of Texas remained the leading source of Fifth Circuit decisions, with 623 opinions issued by the Fifth Circuit originating in that district in the 2024-2025 period. The affirmance rate for Northern District of Texas decisions was 90.37%. The next highest totals of appeal decisions were from the Southern District of Texas with 436 appeals with an 83.49% affirmance rate, and the Western District of Texas with 322 appeals and a 77.95% affirmance rate.
The lowest number of opinions originated from cases from the Northern District of Mississippi, with a total of 37 opinions with a 78.38% affirmance rate. Also on the lower end were the Middle District of Louisiana’s 60 cases with a 75% affirmance rate, and the Southern District of Mississippi’s 109 opinions with an affirmance rate of 79.82%.
The Eastern Districts of Louisiana and Texas were the origins of 137 (83.21% affirmance rate) and 158 (87.34% affirmance rate) decisions by the Fifth Circuit, respectively.
In addition to the review of District Court decisions, the Fifth Circuit also reviewed 4 decisions of the U.S. Tax Court in 2024-25, fully affirming all 4. The Fifth Circuit also reviewed 129 petitions for review of Board of Immigration Appeals decisions, of which 123 were denied or dismissed and 6 were granted, for an “affirmance” rate of 95%.
What the Appeals are About
One common interpretation of the Fifth Circuit’s high overall affirmance rate – 87% – is that prevailing on appeal is an impossibly difficult hill to climb. However, the likelihood of reversal can be more accurately assessed by reviewing the affirmance rates by area of law.
The lion’s share of the Court’s high affirmance rate stems from criminal appeals, which account for 1,298 of the 2,424 opinions issued in the 2024-25 term. In criminal conviction and sentencing cases, the affirmance rate stands at 94.33%. Looking at civil matters and other specialized cases, lower, and less discouraging, affirmance rates are found. For example, in commercial-civil cases, the Court affirmed the lower courts’ rulings in 73% of cases; and in civil rights/constitutional claims, the Court also affirmed decisions in 73% of cases. The employment and labor law docket had an affirmance rate of 78.6%.
Other case types brought before the Fifth Circuit this year include qualified immunity (60.3% affirmance rate), personal injury/non-commercial tort (80% affirmance rate), social security (100% affirmance rate), bankruptcy (71% affirmance rate), arbitration (42.9% affirmance rate), tax law (87.5% affirmance rate), healthcare law (including ACA challenges and COVID-19 or other vaccine-mandate challenges) (50% affirmance rate), voting/election law (28.6% affirmance rate), environmental law/toxic tort (41.7% affirmance rate), products liability (85.7% affirmance rate), maritime law (63.6% affirmance rate), attorney discipline (25% affirmance rate), administrative law (37.8% affirmance rate), class action (0% affirmance rate), and international law (67.7% affirmance rate).
Also striking is a granular-level look at which side of the “v” the Fifth Circuit’s decisions favor in certain types of cases. For example, in 94.11% of criminal and sentencing appeals, the Court’s decision favors the prosecution. In commercial-civil cases, 68.13% of decisions favor the defendant—perhaps a far lower percentage than practitioners might think; though unsurprising is the 80.49% figure that favors defendants in personal injury/tort decisions, yet the 33.33% percentage favoring defendants in cases where class action certification is at issue is down from 85.6% last year. Civil rights and constitutional claims favored the government defendant by 79.78%, and, similarly, where qualified immunity is the primary issue, 71.43% of decisions favor the government defendant. Perhaps of little surprise to practitioners in the employment law field, 81.43% of opinions in that area favor the employer over the employee.
Opinion Mechanics and Judicial Independence
Of the 2,424 opinions released by the 5th Circuit in 2024-25, 420 were designated for publication, for a 17.33% publication rate, a decrease from 19.8% the previous year. This continues a multi-year trend of a relatively low publication rate. Interestingly, the affirmance rate for published decisions was only 51.43%.
Taking a look at the judicial activity for the 2024-25 term, Judge Stewart participated in the most panels with published opinions. Meanwhile, Judge Higginson remained the busiest attributed writer, authoring the most attributed opinions for the fifth consecutive year. The court issued a total of 2,012 per curiam opinions, with 1,954 of them unpublished, reflecting a significant portion of cases decided without individual authorship. Chief Judge Elrod participated in the most panels with opinions designated for publication, followed very closely by Judge Higginson. On the other hand, Judge Dennis demonstrated the most independence, voting fully with the majority (with no separate concurrence or dissent) in “only” 91.67% of panels on which he was a member. Judges Higginson and Dennis were the biggest dissenters for the annual period, issuing 14 and 12 dissenting opinions. Judge Ho authored the most concurring opinions for the fourth year in a row, with 18. Finally, Judges Jolly, Higginbotham, Davis, and Clement, along with judges sitting by designation, consistently voted with the majority in full on all cases, without issuing separate concurrences or dissents.
While the judges' activities and decisions can reflect personal judicial styles or leanings, it's important to recognize that party affiliation and the president who appointed them have little impact on the unanimity of most rulings. As can be seen from the highest and lowest pure majority percentages, judges on the Fifth Circuit, regardless of their backgrounds, often rule together in a striking number of cases, with many decisions made without dissent or concurring opinions.
Conclusion
Wrap it all together, and an opinion in the 2024-25 term was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Jones, Haynes, and Stewart on the panel.
The 2024-25 statistics show that we can often over-emphasize the importance of the composition of the typical panel decision, as, with only one exception (Judge Dennis), all the Court’s judges voted fully with the majority more than 94% of the time, and most judges are above 97%. Practitioners also often over-emphasize the difficulty of gaining a reversal or vacatur on appeal; depending on the type of case, the affirmance rate can come way down from the Court’s overall affirmance rate.
Key trends in the Court's operations, such as a decrease in en banc activity and a continued reliance on per curiam decisions, emphasize ongoing discussions about transparency and judicial independence. The Fifth Circuit’s significant representation in the Supreme Court’s 2024-25 docket underscores its influential role in shaping federal jurisprudence (even if, more often than not, the Supreme Court is reversing or vacating the Fifth Circuit’s decisions that end up there). Meanwhile, the relatively low publication rate of opinions continues to spark debate about the accessibility of the Court’s decisions and their impact on legal precedent.
