Supreme Court Audition Watch: Working Hovertime
The Fifth Circuit’s thirstiest culture warrior is running out of ways to debase himself in public.
Since James Ho was confirmed to the Fifth Circuit in 2017, he has not allowed a day to pass without thinking about how to parlay this gig to get what he really wants: a promotion to the Supreme Court the next time a vacancy should arise under a Republican president. Delivering paint-by-numbers speeches about the excesses of cancel culture, condemning the scourge of racism against white people, and writing unironic opinions bemoaning the rise of a “woke Constitution” are not the sorts of things federal judges typically do, unless they measure success in the number of times they are mentioned during the Fox & Friends A-block.
Earlier this week, Ho delivered yet another highlight. Back on March 4, the Federal Judges Association—which is, as the name suggests, a national association of federal judges—issued a statement condemning the escalating threats of violence against judges who have blocked Trump administration initiatives in some form or another. Days later, Ho announced to an audience of aspiring Fifth Circuit clerks at a Federalist Society student conference that he had up and resigned from the FJA in protest of this “sanctimonious” little stunt. I want to be clear about what James Ho is proud of here: throwing a semi-public tantrum over a fairly milquetoast assertion that it is bad when people threaten to kill his colleagues on the internet.
The gravamen of Ho’s complaint is that FJA had not, in Ho’s opinion, sufficiently condemned previous criticisms of Justices Clarence Thomas, Sam Alito, or Brett Kavanaugh, all of whom Ho hopes to one day have the privilege of serving coffee during conference. “You can’t say that you’re in favor of judicial independence only when it comes to decisions that you like,” explained Ho, whose commitment to defending “free speech” generally ends the moment someone has the temerity to disagree with speech he likes. “That’s not protecting the judiciary, that’s politicizing the judiciary.” Do you see what he did there? With the alliteration? Neil Gorsuch’s reign as the Court’s most insufferable writer might come to an end soon!
Perhaps aware that FedSoc speeches alone will not dislodge Aileen Cannon as the prohibitive favorite, Ho has also infused his opinions of late with conservative dogma that just so happens to align with the sitting president’s policy agenda. “A sovereign isn’t a sovereign if it can’t defend itself against invasion,” Ho wrote last year, in a case about Texas’s efforts to take immigration enforcement into his own hands. In a follow-up interview published by The Volokh Conspiracy, Ho argued that the Fourteenth Amendment’s guarantee of birthright citizenship does not apply in cases of “invasion,” a word that, in his view, applies to people trying to enter the country with nothing more than the clothing on their backs.
Why did Ho feel the need to strain to make this relatively arcane point? Because in 2006, he wrote a law review article defending birthright citizenship as a constitutional right “protected no less for children of undocumented persons than for descendants of Mayflower passengers.” By correcting this little whoospie with a post hoc exception for “invasions,” Ho made clear that he is willing to interpret the law to mean whatever Trump thinks it ought to mean, no matter what he might have previously written to the contrary. Clumsy and embarrassing though Ho’s attempt to backtrack may be, it’s better than taking the risk that his application gets auto-shuffled to the “liberal squishes” pile next time the White House is perusing CVs.
This concludes the latest edition of James Ho Supreme Court Audition Watch, our occasional series on the man who knows that the only thing standing between him and the promotion he craves is whatever remains of his capacity to feel shame. Next month, when he challenges Kyle Duncan to a push-up contest streamed live on Rumble, rest assured that we’ll be back to break down the tape.
As always, you can find everything we publish at ballsandstrikes.org, or follow us on Bluesky at @ballsandstrikes.org. You can get in touch by emailing us at contact@ballsandstrikes.org. Thanks for reading.
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Ho doesn't seem to be doing himself any favors by his relationships with his fellow 5th Circuit judges. In one recent vote whether to rehear a case en banc, he was the only vote in favor of rehearing, and instead of taking the hint, he wrote a long dissent from the decision pointing out how every one of his 16 colleagues, apparently, was wrong.
In a second similar case, he did manage to get Chief Judge Elrod to vote with him to rehear (vs the 15 who did not), but she wouldn't even sign on to his dissenting opinion. And in a huge rebuke, most of the rest of the conservatives on the court, including every other Trump appointee, signed an opinion detailing why Ho was wrong. One might guess that they don't like him at all.
To Judge Ho, we should say, "Good riddance." His public conduct and public comments over the past (at least) 10 months have been shameful and a national embarrassment. He deliberately violated his oaths of office and our Constitution, specifically to knowingly and willfully violate the freedom of expression and freedom of association of students and faculty at Columbia (at least). The FJA should have expelled Judge Ho long ago.
Judge Ho helped lead an undisciplined gang of federal judges to publicly pretend that something in our Constitution gave them the power to punish (regulate) political and religious "viewpoints" at "Columbia University." See https://freebeacon.com/wp-content/uploads/2024/05/letter.pdf. Their express objective was to regulate political and religious "Viewpoint(s)" on "the faculty and across the administration—including the admissions office."
The judges directly violated our freedom of expression by discriminating based on viewpoint of expression (specifically, religious and political viewpoints). Then, they violated our freedom of association by declaring their extrajudicial punishment of students who merely associate with Columbia students or faculty: "we will not hire anyone who joins the Columbia University community—whether as undergraduates or law students— beginning with the entering class of 2024."
The federal judges' blatantly unconstitutional extrajudicial punishment went even further: "Columbia" is "disqualified" (by a gang of federal judges in a mere letter) "from educating the future leaders of our country." Nothing in our Constitution authorized judges to impose any punishment on any "person" (and the Fifth Amendment emphatically precluded depriving any person of any liberty) except with all "due process of law."
Judge Ho knew (and knows) that nothing in our Constitution delegated to any federal court (much less individual judges) any power to impose extrajudicial punishment to support retaliation and discrimination based on any political or religious viewpoint.
In 2022 in Shurtleff v. City of Boston, SCOTUS famously re-emphasized the unconstitutionality of viewpoint discrimination, specifically when based on religious viewpoint:
No federal public servant was delegated any power to "exclude" or regulate (much less punish) any "speech" on the basis of "religious viewpoint." Such conduct constitutes "impermissible viewpoint discrimination." Any public servant who "discriminated based on religious viewpoint" necessarily "violated the Free Speech Clause" (at least).
In Shurtleff, SCOTUS invoked controlling precedent pertaining to schools from 2001 (Good News Club v. Milford Central School) and 1995 (Rosenberger v. Rector and Visitors of University of Virginia). In Rosenberger, SCOTUS emphasized that a public official targeting "particular views" commits "blatant" and "egregious" "violation of the First Amendment." Any "viewpoint discrimination" by any public servant is "presumed impermissible" (it presumably violates our Constitution) "when directed against speech" that has not been proved (with clear and convincing evidence) to exceed a "forum's limitations."