One MAGA Judge’s Campaign for the Supreme Court Keeps Leading to Humiliation
No judge has faced as much humiliation at the Supreme Court in recent memory as Andrew Oldham. A Donald Trump appointee to the U.S. Court of Appeals for the 5th Circuit, Oldham has been smacked down at SCOTUS on five occasions over the last two years, each time by a lopsided majority. His slash-and-burn conservatism has found little purchase even on this conservative Supreme Court; by now, his opinions might as well come with red flags marking them as top candidates for reversal. A predictable pattern has emerged: Oldham stakes out some new far-right position, dismissing all counterarguments with sneering condescension. His more radical colleagues cheer him on, and within the safe space of the ultra-reactionary 5th Circuit, their ideas seem unbeatable. But almost as soon as those ideas escape containment and get exposed to the wider world, they fall apart, revealing a hollow core where the logic is supposed to be. Oldham’s empty theories cannot survive contact with the Supreme Court, which swiftly dumps them to the garbage bin of obvious legal errors. Then the cycle starts anew.
Yet Oldham, who was confirmed in 2018 by a single vote, seems undeterred by his many defeats at SCOTUS. If anything, each setback only motivates the 46-year-old Federalist Society stalwart to take a bigger swing next time around. This reaction offers a clue that Oldham is not writing opinions with the goal of winning affirmation at the Supreme Court. His larger aim may be to win the attention (and praise) of Trump, thereby rising to the top of the SCOTUS shortlist. In the context of this ongoing audition, being right about the law is much less important than being loyal toward the president’s agenda. And getting reversed by the Supreme Court may be less an embarrassment than a badge of honor.
Even on the 5th Circuit—a court stacked with MAGA warriors falling over themselves to pledge fealty to Trump—Oldham stands out for both the audacity and incoherence of his opinions. He writes like a supercilious bully, throwing a tantrum on the page when confronted with a policy or argument he dislikes. And he is proudly partisan, peddling conspiracy theories drawn straight from the right-wing fever swamp (including a recent suggestion that Joe Biden’s use of an autopen may have rendered his grants of clemency illegitimate). Time and again, the Supreme Court has put Oldham in timeout while it cleans up the mess he made.
That dynamic played out in a trio of high-profile cases this term. First, in March’s Bondi v. VanDerStok, the Supreme Court rejected his attack on a federal rule restricting the sale of untraceable “ghost guns.” Oldham had joined an opinion invalidating the rule nationwide and penned his own melodramatic concurrence that claimed the government’s theory would turn “millions and millions of Americans” into “felons-in-waiting.” By a 7–2 vote, the Supreme Court upheld the rule, specifically brushing off Oldham’s overheated warning about its “staggering” consequences. In his majority opinion, Justice Neil Gorsuch—himself a gun rights enthusiast—dispatched with Oldham’s logic in a single paragraph, explaining that the judge’s approach favored hyperbolic alarmism over a statute’s actual “text and context.”
Next, in April’s FDA v. Wages and White Lion, the court threw out Oldham’s attempt to abolish strict Food and Drug Administration regulations of flavored vapes. In a characteristically snitty opinion for the 5th Circuit, Oldham had insisted that the FDA engaged in an unlawful “surprise switcheroo” when it cracked down on these products after discovering that they were disproportionately marketed to, and used by, teenagers. He then attempted to deregulate America’s flavored vape market by judicial fiat, pressing the FDA to allow the sale of teen-friendly vapes with flavors like “Chewy Clouds Sour Grape” and “Suicide Bunny Mother’s Milk and Cookies.”
As Vox’s Ian Millhiser noted, Oldham’s ruling was remarkably sloppy, resting on flagrant misstatements of law and “factual errors that undermine the entire premise of his opinion.” (One tobacco company that prevailed in the case even asked him to remove one especially egregious mistake, a request he refused.) It was no surprise, then, when SCOTUS unanimously overturned the decision. This time, Justice Samuel Alito wrote the majority opinion—a move that must have stung, since Oldham clerked for Alito 16 years earlier. The justice faulted his former clerk for failing to give any real weight to the FDA’s expert scientific judgment in a fast-evolving area of the tobacco market. “We see no reason,” Alito wrote, why the FDA could not reasonably conclude that candy-flavored vapes would draw “young people” into a lifetime of nicotine addiction. Of course, Oldham had offered many of his own reasons to think that the FDA acted arbitrarily; Alito just didn’t buy them.
Finally, in June’s FCC v. Consumers’ Research, the Supreme Court reversed an opinion that Oldham presented as something of a magnum opus. The case dealt with the “Universal Service Fund,” which Congress created to bring phone and internet access into poor and rural areas. By law, the Federal Communications Commission collects fees from telecom companies, then uses those to fund services in underserved regions of the country. The FCC has tasked a private corporation with overseeing the fund’s day-to-day operations, though the agency itself makes all final decisions.
Last year, Oldham struck down the fund, jeopardizing a multibillion-dollar program that connects millions of Americans to the wider world. He decried the fund as a “misbegotten tax” that violated the “nondelegation doctrine,” an ahistorical principle devised by conservatives to hobble federal regulations. Oldham’s precise logic was befuddling: He did not argue that Congress’ delegation of authority to the FCC was unlawful, or that the FCC’s further delegation to a private corporation crossed the legal line. Instead, he proposed a “combination” theory, alleging that the two delegations, put together, ran afoul of the Constitution.
This decision prompted George F. Will to write a fawning puff piece proclaiming that Oldham “merits promotion” to the Supreme Court. Yet the judge’s legal reasoning was so feeble that the plaintiffs actually abandoned it when the case arrived at SCOTUS. Chief Justice John Roberts brought it up during oral arguments just to mock it. And in the end, not a single justice embraced it. The court upheld the Universal Service Fund by a 6–3 vote, but the dissenters politely ignored Oldham’s ridiculous “combination theory,” favoring a different rationale. In her majority opinion, Justice Elena Kagan relegated this theory to two pages, briefly noting that Oldham’s logical contortions “do not work”; both delegations, she wrote, were perfectly constitutional, and two “meritless” challenges cannot combine into a “meritorious one.” Or, put simply: “Two wrong claims do not make one that is right.”
Wrong claims, though, are just about all Oldham has to offer. Before this term’s trio of reversals, SCOTUS had already repudiated him in two major cases. In one, Oldham tried to uphold Judge Matthew Kacsmaryk’s notorious 2023 decision attempting to restrict abortion pills nationwide; the Supreme Court overruled him immediately, freezing Kacsmaryk’s order. It later rejected Oldham’s argument that the plaintiffs had standing to sue, tossing out the entire case. (For those keeping score, that decision was also unanimous.)
In the other, Oldham cast the decisive vote to let Texas start enforcing a law that would censor social media platforms in the name of protecting conservatives’ free speech. The Supreme Court promptly issued an emergency order halting the Texas law. But Oldham didn’t get the hint: Four months later, he issued a turgid 2–1 opinion declaring that social media companies have no First Amendment right of editorial discretion, dismissing content moderation as an insidious plot “to censor what people say.” The Supreme Court comprehensively renounced Oldham’s views in a sharp opinion last year, with six justices holding that his opinion rested “on a serious misunderstanding of First Amendment precedent and principle.” Justice Amy Coney Barrett even wrote a separate concurrence reiterating that the 5th Circuit badly botched the law of free speech. Yet when the case returned to the 5th Circuit, Oldham wrote a bizarre opinion that largely ignored the fact that he had been rebuffed by SCOTUS, instead suggesting that Texas could still find a way to implement its unconstitutional law.
As this reaction indicates, Oldham seems to view every repudiation as a challenge to go bigger next time. A more self-reflective judge might ask where he went wrong; Oldham refuses to accept that he can be wrong. In fact, this Groundhog Day–like cycle of errors and reversals has already started anew: Just before the 2024 election, he wrote an opinion for the 5th Circuit declaring that federal law forbids states from counting ballots mailed by Election Day that arrive shortly thereafter. Nearly half the states have such laws, and Congress has never taken issue with them. Yet Oldham divined a prohibition from the penumbras of an 1872 statute. His opinion, as Vox’s Millhiser wrote at the time, is borderline incomprehensible; it rests on a series of made-up propositions with no remotely plausible basis in precedent. Since the ruling creates a rift in federal election law, the Supreme Court seems destined to review it. Even a cautious gambler could stake their chips on the outcome.
The weirdest thing about Oldham’s terrible opinions is that their half-baked inanity does not seem to reflect his true intellect. He received degrees from the University of Virginia, Cambridge, and Harvard Law, then clerked for Alito before serving as deputy solicitor general of Texas, when he argued two cases at SCOTUS. (He lost both, but turned in respectable performances.) Perhaps serving on the 5th Circuit among like-minded partisans who do not challenge his frivolous reasoning has dulled his capacity for sharp legal thinking. The arrogant certitude with which he announces his conclusions certainly suggests that he has embraced a posture of infallibility that leaves no room for good-faith disagreement.
The more obvious answer to this puzzle, though, is that Oldham is campaigning for a Supreme Court seat, and thinks he can get in the White House’s good graces by handing down whatever gibberish furthers the Republican Party’s goals. Trump has made it clear that he’s dissatisfied with his first three SCOTUS appointees over their rare deviations from the party line. Next time, he wants a 100 percent MAGA foot soldier free from traditional restraints on judicial activism like independence and principle. Oldham has gone out of his way to demonstrate that he fits the bill. He can even boast that alleged squishes like Barrett are skeptical of his hard-right jurisprudence—proof that Trump can count on him to spurn the lily-livered intellectuals and implement Project 2025 from the bench. A more modest jurist might be embarrassed to see their work get such a hostile reception at the Supreme Court. Oldham may see it as his greatest asset.
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