Tad Bartlett Quoted by Bloomberg Law and the National Law Journal on Record Fifth Circuit En Banc Activity

Partner Tad Bartlett, head of Fishman Haygood’s Appellate Section, was recently quoted in two national publications covering the Fifth Circuit’s surge in en banc activity in 2026. The first, “Fifth Circuit Judges Cry Foul on Full Court’s Review of Cases,” published by Bloomberg Law on Aug. 4, 2026, explores the rare phenomenon of judges dissenting from grants of en banc rehearing. Then, on Aug. 5, 2026, the National Law Journal published “5th Circuit Sees Possible Record En Banc Activity in 2026,” which examines how the New Orleans-based court is on pace to hear a record number of en banc cases this year.

In his interview with Bloomberg Law, Tad provided insight into Judge Stephen Higginson’s dissent from the grant of en banc rehearing in a Commerce Clause-centered challenge to the federal felon gun possession ban. Tad suggested that Judge Higginson’s dissent may have been intended to educate the public about the broader legal implications of the court’s decision to use its en banc procedure in the case; the judges’ particular substantive positions on the legal issues, of course, would be fully developed in the course of the en banc argument and opinion-writing process. Tad also suggested that the recent dissents from grants of rehearing could reflect the circuit working through how to set standards for when the court should exercise its full-review power.

Tad also discussed the factors behind the Fifth Circuit’s potential record of 14 en banc grants of rehearing and 12 oral arguments in 2026 with the National Law Journal. While these numbers surpass the previous high of 11 cases in 2024, he cautioned against reading too far into the numbers, noting that much of the intra-court dynamics, including the exchange of emails and views among judges before an en banc poll, happens behind the scenes. Though the 14 cases may set a record, Tad pointed out the increase may simply reflect a natural outgrowth of the volume of legal challenges being filed, rather than a fundamental change in the court’s attitude toward en banc review.

Tad served as a judicial clerk to U.S. Fifth Circuit Judge James Dennis following his graduation from law school. He now handles appellate matters in all Louisiana state courts and before the U.S. Second, Fifth, Seventh, Ninth, and Eleventh Circuits, including certiorari practice before the U.S. Supreme Court. Tad also runs the Take the Fifth blog, which tracks and summarizes all opinions released by the Fifth Circuit.

Our lawyers handle appeals for both plaintiffs and defendants in civil litigation across many subject matters, in review of administrative proceedings, and, as part of our pro bono commitment, in immigration and post-conviction proceedings.

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