If you could breathe life into 4chan, the dark corner of the Internet where shitposters, edgelords, Groypers, and trolls of all kinds thrive, and then appoint this new lifeform to the federal bench, you would have created Judge James Ho.
Ho, appointed by former president Donald Trump in 2018 to the United States Court of Appeals for the Fifth Circuit, recently argued that anti-abortion doctors may seek a court order banning a commonly prescribed abortion medication, because “doctors delight in working with their unborn patients — and experience an aesthetic injury when they are aborted.”
He’s written that a federal law prohibiting gun possession by people that a court has determined to be a “credible threat to the physical safety of [their] intimate partner” is unconstitutional. Among other things, Ho claimed that this law “should give us pause” because women getting a divorce sometimes seek such court orders as “a tactical leverage device” in their divorce proceedings.
Ho’s very first opinion as a judge, a dissenting opinion in a case he did not even hear, claimed that all laws limiting the amount that wealthy donors may give to political campaigns are unconstitutional. Under Ho’s understanding of the Constitution, nothing prevents Harlan Crow, the billionaire Republican donor famous for lavishing gifts on Justice Clarence Thomas, from funding an entire presidential campaign.
Also, speaking of Harlan Crow, Ho held his official ceremony swearing him in as a federal judge in Crow’s personal library.
Honored to attend Jim Ho's swearing in to the Fifth Circuit Court of Appeals today, alongside Justice Clarence Thomas & Judge Jerry Smith. I am confident my good friend Jim will be an extraordinary appellate judge and a principled jurist faithful to the law. pic.twitter.com/s1tWYu2j2c— Senator Ted Cruz (@SenTedCruz) January 5, 2018
Ho’s work, in other words, is often indistinguishable from that of a professional troll. He revels in taking deliberately provocative positions. He often joins a fairly extreme opinion written by a colleague, and then writes separately to take an even more extreme position. His judicial opinions mingle Fox News talking points, men’s rights activism, Federalist Society fantasies, and discredited legal doctrines that are now taught to law students to warn them of the Supreme Court’s worst mistakes.
Ho seems to never miss an opportunity to weigh in on a political controversy. When he’s not writing concurring opinions arguing that the Supreme Court should bring back the Lochner era, an age when conservative justices imposed their own laissez-faire ideology on the rest of the nation, he can often be found lecturing law schools on the evils of “cancel culture.”
(That said, Ho did not respond to a request to be interviewed for this piece.)
When I speak to other judges, I often hear them use a derisive word to describe this kind of behavior: “auditioning.” It’s an increasingly common practice among Republican judges itching for a promotion.
In his final years as a lower court judge, Justice Neil Gorsuch wrote several opinions laying out his plans to shift power from federal agencies to the judiciary — a high-priority issue for the Federalist Society, which played a key role in picking Trump’s judges and justices. These opinions reportedly “proved decisive” in the Trump White House’s decision to give Gorsuch a big promotion.
Similarly, in his final year as a lower court judge, Justice Brett Kavanaugh — who previously had a thin record on abortion — went out of his way to convey both in a published opinion and in a speech to a conservative think tank that he opposed Roe v. Wade. Trump picked Kavanaugh for the next seat to open up on the Supreme Court.
The most alarming thing about Judge Ho, in other words, isn’t his penchant for trolling. It is the very real possibility that he will be rewarded for it. No judge in America has auditioned harder for a Supreme Court appointment in a Republican administration. And, if the next president is Donald Trump, Trump has already shown that he prefers judges who go out of their way to show their loyalty to Republican causes.
What does Jim Ho’s version of the Constitution look like?
Lochner v. New York (1905) is one of a handful of decisions that legal scholars refer to as the “anti-canon” — a list of cases taught to law students as examples of how judges must never, ever behave. The list also includes the pro-slavery decision in Dred Scott v. Sandford (1857) and the segregationist decision in Plessy v. Ferguson (1896).
Ho wants to bring back Lochner.
Lochner stuck down a New York state law that limited, to 60 hours a week, the amount of time worked by bakery workers. At the time, these workers were typically paid by the day or by the week, so the law had prevented these workers from being forced to work extraordinarily long shifts for no extra pay.
Lochner was grounded in what it described as the “right of the individual to ... enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.” The idea was that, if a worker entered into a contract to work long hours for little pay, then the law could not alter this contract — even if the contract was itself the product of exploitation or desperation.
Lochner, in other words, not only stripped the government of much of its power to protect workers, it did so on the dubious ground that, by insisting that workers adhere to whatever exploitative employment contracts their bosses imposed upon them, the Court was actually defending the rights of those workers. The Court ultimately abandoned Lochner in West Coast Hotel v. Parrish (1937).
Ho picked an inauspicious case, Golden Glow Tanning Salon v. City of Columbus, to offer his love letter to Lochner. In it, a Mississippi tanning salon claimed that Covid era lockdowns violated the salon owner’s “right to work,” a common argument made by modern day libertarians who seek to revive Lochner. (A “right to work” is synonymous with Lochner’s so-called right to “enter into those contracts in relation to labor which may seem to him appropriate.”)
Though all three judges who heard Golden Glow agreed that the Supreme Court’s decisions repudiating Lochnerism prevented them from ruling in the tanning salon’s favor, Ho wrote a brief concurring opinion that relied heavily on scholarship by right-wing lawyers arguing that Lochner should be revived. He suggested that the anti-worker right recognized in Lochner has a “better historical grounding than more recent claims of right that have found judicial favor.” And he urged the Supreme Court to take up a pending case seeking to revive Lochner (the justices declined to do so).
Ho’s passion for the sorts of economic “rights” favored by Gilded Age robber barons is matched by his disdain for abortion. He wrote about the “moral tragedy of abortion” in one of his judicial opinions. And he’s urged his Fifth Circuit — which is already the most right-wing federal appeals court in the country, and is typically hostile towards reproductive freedom — to be even more aggressive in quashing abortion rights.
Just last week, for example, a three-judge panel that includes Ho attempted to ban the drug mifepristone, which is used in more than half of all US abortions. That decision will have no effect, because the Supreme Court preemptively blocked it last April — a pretty clear sign that even this very conservative Supreme Court thinks that the legal arguments against mifepristone are weak.
But Ho didn’t just join this attempt to ban the drug, in a case called Alliance for Hippocratic Medicine v. FDA, he wrote a separate opinion arguing that his colleagues were insufficiently hostile to abortion rights.
Technically, the Fifth Circuit’s majority opinion in Alliance did not purport to ban mifepristone outright, it merely ordered the FDA to reinstate restrictions on the drug that the agency abandoned in 2016. As a practical matter, this order would prevent the drug from being marketed in the United States for at least a few months, because it would take a long time for government regulators and the drug maker to comply with the pre-2016 rules. But Ho would have gone even further, ordering the FDA to rescind its decision to approve the medication way back in 2000.
There are so many errors in Ho’s legal reasoning that it would be tedious to list them all here. One of them is that the statute of limitations to challenge an FDA approval of a drug is six years. While there are legitimate reasons that time period can sometimes be extended, Ho can’t rescue a lawsuit that was filed more than two decades after mifepristone’s approval.
On guns, Ho joined the Fifth Circuit’s decision in United States v. Rahimi (2023), a decision the Supreme Court is likely to reverse in its upcoming term, holding that people who violently abuse their romantic partners or their partner’s child have a Second Amendment right to own a gun — even after a court proceeding determines that the abuser is “a credible threat to the physical safety of such intimate partner or child.”
Rahimi is another case where Ho joined an alarming decision written by one of his colleagues, and then wrote separately to argue for an even more extreme position.
Ho argues that one reason his court should be skeptical of a law seeking to disarm people subject to domestic violence restraining orders is that women who are not victims of abuse allegedly obtain these orders to “secure [favorable] rulings on critical issues such as [marital and child] support, exclusion from marital residence and property disposition.”
As evidence that this is a real problem that actually exists, Ho cites a handful of court decisions — including a 1993 decision by a court in New Jersey that invalidated a restraining order because of a lack of evidence that the man subjected to it was violent, and a 2005 incident where comedian David Letterman was briefly subject to a restraining order before a court tossed that order out.
The fact that Ho had to rely on decades-old cases in faraway jurisdictions to show that judges sometimes issue domestic violence restraining orders for invalid reasons is a sign that, maybe, this isn’t as big of a problem as Ho makes it out to be. Nevertheless, Ho would potentially arm hundreds of men who have murderous intentions in order to save someone like Letterman from having to go without a firearm for a couple of weeks.
Ho could be the future of the federal judiciary
Ho’s penchant for tacking to the right of his already quite reactionary colleagues marks him as an outlier, even within a conservative federal judiciary. But he’s hardly an extreme outlier, especially on the far-right Fifth Circuit.
In Collins v. Mnuchin (2019), for example, Ho signed onto an opinion by Judge Don Willett that threatened to invalidate every single action taken by the Federal Housing Finance Agency (FHFA), which was created in 2008 to stabilize the US housing market during a historic recession. Had Willett’s approach prevailed in the Supreme Court, it could have potentially collapsed the US housing market and triggered a global economic depression (the Supreme Court voted 8-1 against Willett’s approach).
Notably, however, Ho was one of a total of seven judges who signed onto Willett’s attempt to burn down more than a dozen years of work by a federal agency. There is no shortage of judicial arsonists on the Fifth Circuit.
Similarly, the Supreme Court will hear several cases in its upcoming term in which it is likely to reverse similarly aggressive decisions by the Fifth Circuit. Those most likely include the Alliance case about mifepristone, as well as the Rahimi guns case, and two decisions declaring the entire the Consumer Financial Protection Bureau unconstitutional and gutting the federal government’s power to enforce securities law.
The leading contenders for the Republican presidential nomination are already signaling that they want to pick justices who are well to the right of the three already very conservative justices Trump placed on the Supreme Court. In his infamous speech before the January 6 attack on the US Capitol, Trump said that he is “not happy with the Supreme Court” because they supposedly “love to rule against me.” (When Trump was president, the Court often manipulated its own procedures to rule in Trump’s favor, but the Court rejected his bid to overturn the 2020 election.)
Florida Gov. Ron DeSantis attacked Trump’s justices in June, claiming that “none of those three are at the same level of Justices Thomas and Justice Alito,” two justices who fairly consistently vote like Fifth Circuit judges.
Ho, meanwhile, is auditioning harder than anyone in the judiciary to catch Trump or DeSantis’s eye. And, even if the next Republican president decides to pick someone less flamboyant for the high court, they will have no shortage of candidates who are eager to light decades' worth of settled law — along with entire federal agencies — on fire.