Judge James Ho, the thirstiest weirdo on the federal bench, is at it again. Last month, Justice Sam Alito failed to exit stage right — rude! — but you never know what might happen, and so Judge Ho is heaving himself toward every open microphone to remind the powers that be that he is a Jesus-loving reactionary reporting for duty.
Should the good Lord and Donald Trump decree that he take his rightful seat at One First Street, he will not flake out like some people. He’s not like those other girls. He’s a real originalist … for Christ! And if he can just break free of the pack of ragey climbers at the Fifth Circuit, he can rid the country of gay marriage and pronouns and immigrants after all.
Oh, sure, Ho is himself an immigrant from Taiwan. But, he’s talking about the bad kind of immigrant, if you know what he means. And I think we all do!
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On July 17th, Judge Pick Me delivered a speech on “judicial courage” at an event hosted by the First Liberty Institute, an astroturf Christian legal group dedicated to knocking down the wall between church and state.
“Faith in Schools? America Says It’s Ready for It!” screams a recent post.
South Texas College of Law Professor Josh Blackman, who has a profitable side hustle laundering fringe bigotry and returning it with the gleaming patina of legitimacy, was greatly moved to hear it and persuaded the judge to allow him to publish the entire speech at the The Volokh Conspiracy.
Ho held forth on “certain self-evident truths.” Again, you know the ones.
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The “Biblical truth that marriage is the union of one man and one woman.” The “Biblical truth that men are not women.” The “basic truth that pregnancy is not an ‘illness’ — and chemical abortion is not the cure — no matter what some bureaucrats in the federal government might insist.”
He invoked sainted Justice Clarence Thomas, toiling alone to turn back the clock and overturn Obergefell, as Trump’s feckless appointees dither.
“We’re nowhere near the four votes necessary to grant a cert petition — or the five votes needed to rule on the merits,” he laments, sneering in disgust at the liberal squishes who used the trans petitioner’s appropriate pronouns while stripping her of her civil rights.
But of course, no culture war diatribe would be complete without some gratuitous abuse of immigrants.
“What about the basic truth that foreign governments weaponize illegal immigration to hurt other countries?” wondered Judge Ho.
As with so many of the judge’s “basic truths,” this one is a whole lot more complicated than he lets on. Obviously, states like Russia weaponize immigration by, for instance, sending de facto settlers into occupied Crimea. But Ho doesn’t give a shit about migration patterns in Ukraine or Rwanda — he’s talking about millions of undocumented immigrants pushed out of their home countries by the same desperation and aspiration that brought every other wave of migrants to America, including him.
“Judges are supposed to defer to Presidential declarations of a state of invasion,” he tut-tutted. “So the Supreme Court should have upheld the President’s birthright citizenship order in full based on his invasion declaration. But the Court didn’t mention the invasion declaration anywhere in its unfortunate decision last month.”
Hmmmm, could that have been because it doesn’t factor at all in the Solicitor General’s petition for cert in Barbara v. Trump and only got a cursory mention in one of the related cases?
Awkward!
Also awkward:
There’s a saying in my chambers: Nobody reads. It’s true in litigation. And it’s true in judicial selection, too.
Nobody actually reads what people have said and written. And that’s why mistakes are made. Because if nobody reads, then it’s not about who would do the job best. It’s about who wants the job most.
Yes, Jim. Let’s read!
We can start in 2006 when you opined that “Birthright citizenship is guaranteed by the Fourteenth Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”
The following year, you wrote in the Des Moines Register that “Children born in the United States are legally entitled to U.S. citizenship, regardless of the nationality of their parents,” warning that “Dred Scott II could be coming soon to a federal court near you.”
In 2011, you wrote in the Washington Times that protecting birthright citizenship was the only true originalist position and decried conservatives who would “sacrifice the moral high ground they seek to claim by invoking the rule of law when they support proposals to repeal birthright citizenship by statute.”
That same year, you denounced the “unconstitutional and curious” state efforts to deprive the children of immigrants of all the rights of citizenship in the august pages of the Wall Street Journal.
But then, a funny thing happened to the Republican party. Suddenly it wasn’t cool to point out that the Fourteenth Amendment means exactly what it says — and what the Supreme Court has said it says for a hundred years. And so you had to do some fancy footwork.
In 2024, you used a dissent in a case about murder buoys in the Rio Grande to announce that, upon further consideration, you realized it was just fine for the president or even the Texas governor to declare an immigration “invasion” and start treating migrants like an enemy army.
And in case that was too subtle, you sat down with Josh Blackman — who else! — to explain that birthright citizenship isn’t guaranteed after all:
I’m not going to talk about any pending case, of course. But anyone who reads my prior writings on these topics should see a direct connection between birthright citizenship and invasion. Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others. But birthright citizenship obviously doesn’t apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can’t imagine what the legal argument for that would be. It’s like the debate over unlawful combatants after 9/11. Everyone agrees that birthright citizenship doesn’t apply to the children of lawful combatants. And it’s hard to see anyone arguing that unlawful combatants should be treated more favorably than lawful combatants.
Wow! That’s some impressive courage and judicial humility, sir! It really is like you said: “Being a faithful originalist is like being a faithful Christian. You have to be ready to be hated. To be booed by the crowd. And to ignore the ridicule, and just do the work, as passages like Nehemiah 4 remind us.”
And if that doesn’t get it done, as you said, sometimes “it’s not about who would do the job best. It’s about who wants the job most.”
Liz Dye produces the Law and Chaos Substack and podcast. You can subscribe by clicking the logo:
