“Too many judges think that they’re better than other people,” writes Fifth Circuit Judge James Ho in a new piece for the Harvard Journal of Law & Public Policy. “Too many judges have an overinflated view of their intelligence and their abilities.”
For my money, judicial arrogance and an “overinflated view of their intelligence and their abilities” would look like basing a politically motivated, but legally dubious Second Amendment opinion around a bunch of cases that conclude the opposite way if the judge bothered to read them. Or maybe using their perceived clout to blackmail a law school for not disrespecting student speech enough. Those would, of course, describe Judge James Ho.
To quote Sterling Archer, “This is like O. Henry and Alanis Morissette had a baby and named it this exact situation.”
But Ho’s broadside against judicial arrogance does not begin from a point of honest self-assessment. Serious law journal submissions don’t credulously include the phrase “woke Constitution,” after all. Instead, the judge embarks on yet another rhetorical thirst trap aimed squarely at Donald Trump. Churning out inflammatory separate opinions can only go so far to burnish the resume of a Supreme Court hopeful. It’s a challenge to stay top of mind in MAGA politics! That’s why judges use their free time to pick fights with law schools and, as here, write articles supporting the president’s fragile ego against the broad array of judges across the political spectrum constantly ruling against the White House.
Too many judges think they know politics—when they don’t. Too many judges think they know national security—when they don’t. In short, too many judges have forgotten the virtue and value of humility. And I think a big part of the blame goes to the notion of judicial supremacy.
It’s a curious charge to level, given that the judges he’s mad at are pointedly not trying to know politics or national security. The administration’s beef is with judges who have refused to look the other way or bend the rule of law to satisfy politicians draping illegal actions in “national security” rhetoric. This is the same judge who threw a public tantrum when the Supreme Court — this Supreme Court — dared to suggest the government couldn’t summarily deport people without due process just because Trump yelled “gang members!” loud enough.
Standing with the rule of law over the assertions of politicians is, as any student of Schoolhouse Rock would understand, the whole point of the Constitution’s series of checks and balances. To that near universally held principle dating back to the earliest days of the Republic, Judge Ho says… nuh-uh.
Did someone say something about judges being arrogant?
It’s often said that the judiciary is a “co-equal” branch of government. You hear that said by the media, and by legal academics. You see it taught in schools across America. But it’s wrong. The judiciary has an important role in our constitutional republic. But it’s a limited one. Judges don’t write the law. Judges don’t execute the law. And that’s for one simple reason.
Yes… they don’t write law or execute law because the judiciary is the third branch in that checks and balances scheme. But Ho waves away this conclusion to proclaim the reason is “As Americans, we believe that we can govern ourselves.” Which, in context, Ho believes should mean the political branches should have unfettered authority because they can just be voted out.
That’s not a particularly “originalist” argument, to the extent originalism is about interpreting the law from the context of its original understanding, but it’s a paradigmatic originalist argument to the extent originalism is just PR fluff for contemporary Republican party priorities. Originalism means the executive branch has no power without Congress when Democrats are president… and rubberstamping disappearing people to gulags in the middle of the night when Republicans are in the White House. But, against all odds, Judge Ho attempts to square his pet fig leaf philosophy with the argument he’s making off the top:
The American people expect judges to use our independence to follow the law—nothing more, nothing less. And that’s the whole point of originalism.
Well, no. Originalism is, by design, porting a bunch of cherry-picked, off-brand history into judicial decision-making whenever “following the law” doesn’t work out. Remember when the judge wrote earlier that too many judges think they know subjects that they don’t? History should be top of that list.
Judge Ho’s complaint when it comes to originalism is that he thinks judges too often depart from “originalism” to cater to the public, even though the whole first half of his article complained that judges aren’t doing enough to support whatever the superior political branches of government want. But his faith that “As Americans, we believe that we can govern ourselves,” runs only so far as the public chooses to govern itself the way Donald Trump might want.
It’s not an intellectually consistent argument, but it is one that curries favor with the Mad King who holds one’s future career prospects in his tiny little hands.
And since every accusation is an admission, Judge Ho spills some ink trying to paint the adversaries he’s shadowboxing as the real hypocrites.
They vigorously defend district judges against criticism—unless those judges live in Texas or Florida. They strenuously condemn forum shopping—but not if the courts are in Boston or San Francisco.
It’s about receipts, Jimbo. Judge Ho doesn’t want to get into specifics with this topic, because his past efforts to make it make sense haven’t gone so well for him. The Texas judge he’s alluding to, Matthew Kacsmaryk, sits in a single-judge courthouse and right-wing activists — which was, of note, Kacsmaryk’s job description before joining the bench — used this hack to create astroturfed plaintiffs and get nationwide injunctions. This is different than bringing cases in Boston in two ways: (1) bigger cities mean more people with legitimate claims, meaning a case in Boston is far less likely to involve activists inventing an organization a few months before just to manufacture a favorable venue, and (2) a case in Boston is still randomly assigned to a judge in that district.
Comically, Judge Ho will later complain about district judges as opposed to appellate panels and only manage to prove how ridiculous it is to conflate Amarillo and Boston:
[District court] decisions are typically made by just one district judge. They’re the only members of the judiciary who can exercise the judicial power of the United States without anyone’s consent but their own. With unilateral power, there’s unique danger that some district courts may get off track.
Exactly. The fact that a party can use a single-judge courthouse to chose the precise judge to wield all this unilateral power is what differentiates these categories of forum shopping.
They strongly oppose the impeachment of judges—except when those judges are named Thomas or Alito. They’re happy to impeach a President for an alleged abuse of power—but horrified if anyone even suggests impeaching a judge on the same basis.
Well, the distinction might be that Judge Boasberg is catching heat for authorizing subpoenas for phone records of sitting legislators based on probable cause that they were communicating with actors in a criminal conspiracy. People talk about impeaching Justices Alito and Thomas because they took money under the table from people with direct and indirect business before the court and didn’t disclose it as legally required. Judge Ho is no stranger to trying to blow off Justice Thomas’s ethical issues, but at least back then he tried to back up his argument.
Hey, look, if a federal judge ever steals classified documents, refuses to return them, and then has their lawyer lie to law enforcement about complying, we’ll all agree to impeach them too.
Back in March, Judge Ho left the Federal Judges Association because he was angry that they issued a statement about judicial safety. He’s going to double down on that.
They’ve even politicized judicial security. Today, they’re fearful when a judge receives an unsolicited pizza delivery at home. But just a few years ago, they applauded when swarms of protestors disrupted certain Justices’ homes for weeks on end.
Fuck you, man. Those pizza deliveries are arriving in the name of a federal judge’s murdered son. The message those pizza deliveries intend to send is “we know where you live, and remember what happened to Judge Salas’s son.” Even if we grant Judge Ho’s generous and evidence-free assumption that the people sending those pizzas are just trolls who don’t plan to follow through, this is an act of violent intimidation.
The “swarms of protestors,” Judge Ho describes as bothering the justices “for weeks on end.” In contrast to the pizza delivery threats, the protestors he’s talking about set up on public property outside the justices’ homes and picketed for 20-30 minutes at a time. No one at the time alleged that the protestors made any violent threats — direct or implied — beyond mere proximity. And protesting outside someone’s house perhaps should be off-limits, but the Supreme Court itself decided to bless the practice when they ruled that nutjobs can camp out in front of the homes of abortion doctors. It was all fun and games until they had to live under the same laws they imposed on everyone else.
Speaking of arrogance.
So Judge Ho, in his quixotic attempt to be Donald Trump’s best judicial boy, went to a law journal to dismiss judges for thinking “A $20 large pepperoni is an outrage,” deliberately refusing to acknowledge the context. There’s not even a footnote mention of the name attached to these pizza orders, let alone what that would mean. Judge Ho used a Harvard Law platform to simultaneously make light of the judges receiving violent harassment and spit on Judge Salas’s tragedy.
I know sitting on the Supreme Court is cool, but is it really worth bringing this kind of poison into your soul?
Not Enough Respect for the Judiciary—Or Too Much? [Harvard Journal of Law & Public Policy]
Earlier: Judge Ho Indulges In Furious Rage Wank Over AEA Deportations
Judge Ho Apparently Didn’t Bother To Read The Cases He Cited In Domestic Abuser Gun Opinion
Federal Judges All But Admit Yale Law School Boycott Was A Ruse
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 or Bluesky 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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