Conservatives Ho, Wilkinson Split on Views of Courts’ Powers

Two prominent conservative judges weighed in with diverging perspectives about how much power the courts should have over the executive on the same day.

Judge J. Harvie Wilkinson, a Ronald Reagan appointee on the Fourth Circuit, rebuked the Trump administration’s refusal to seek the return of a wrongly deported Maryland man to a prison in El Salvador, despite a lower court judge’s order to facilitate it. He called the government’s position “shocking” to Americans’ “intuitive sense of liberty.”

Hours later, Judge James Ho—a Donald Trump appointee on the Fifth Circuit—published a concurrence in an unrelated case, in which he took a swipe at the power of district court judges and warned of “district judge supremacy.”

The opinions from Wilkinson and Ho, who joined the bench 33 years apart, reflect a generational divide among Republican appointees as they confront rising tensions with the executive branch during the second Trump administration.

Wilkinson in his opinion is “trying to strike a balance in trying to show that the courts have a role to play, albeit a limited role,” said Jeffrey Addicott, a law professor at St. Mary’s University who has written about conservative legal philosophies and identifies as an originalist. Ho, however, “is more in the vein of: when in doubt, the courts should not usurp the power of the executive,” Addicott added.

Wilkinson argues that courts will become irrelevant if they don’t do their fundamental job while Ho advocates for a more deferential approach, said Jay Krehbiel, a political science professor at the University of Buffalo.

“The way he’s framing this is, ‘we’ve got to be careful or we’re going to become irrelevant,’” Krehbiel said of Ho’s opinion.

Generational Divide

Legal scholars described a divide between Trump appointees’ rulings and those by an older generation of Republican appointees.

Wilkinson, born in 1944, and Ho, born in 1973, “have very different conceptions of what their roles are,” which isn’t necessarily a function of being conservative, said Jeremy Fogel, executive director of the Berkeley Judicial Institute and a former federal judge.

He described Wilkinson as a “classic conservative judge” and who “really measures his words,” while his sense of Ho is that he “sees his role developing the law as a more active one.”

“They are from different generations, from different points in the political process, and I think they just come to the judicial role with a different set of expectations,” Fogel said.

Wilkinson clerked for Lewis Powell on the US Supreme Court, who was known for his gentility. Neal Devins, a professor at William & Mary Law School, said that Wilkinson is part of a generation of Reagan appointees who joined the bench just as presidents started considering a nominee’s judicial ideology, and without established national networks for conservative lawyers.

Devins said that Ho, who clerked for Justice Clarence Thomas, came up at a time when the conservative legal movement was “sufficiently strong,” due to groups like the Federalist Society. He said many of the Trump-appointed judges know each other. “They’re part of the same social network, and have more of a group identity than any cohort of judges ever before,” Devins said.

Still, Devins said, Ho stands out even among the Trump appointees. “He’s sort of an outlier in terms of how far he’s willing to go,” Devins said.

Fellow Trump appointee Andrew Oldham joined Ho’s majority opinion on Thursday, which granted a writ of mandamus against a Louisiana district court judge in litigation over an execution method.

But Oldham didn’t join the concurrence, in which Ho made his comments about district court powers. Meanwhile, George W. Bush appointee Judge Catharina Haynes dissented.

Different Audiences

Ho writing separately is an indication that his audience may not have been the parties in the case.

Addicott said both opinions “are written to the Supreme Court,” which has yet to issue clear guidance to lower courts on what it means to “facilitate” the return of the Maryland man.

Carolyn Shapiro, founder and co-director of Chicago-Kent’s Institute on the Supreme Court of the United States, said she thinks Wilkinson is “hoping that the Supreme Court doesn’t try to duck the confrontation” with the administration.

Ho, widely considered to be a Supreme Court contender under this administration, is “probably as much interested in getting a message to the executive branch as to the Supreme Court,” Shapiro said.

Ho specifically called out the chief trial court judge in Washington, James Boasberg, who had initially blocked the deportations of alleged Venezuelan gang members under a wartime law. The Supreme Court later lifted that block and said the men behind the lawsuit had to file suit where they’re being detained, in Texas.

Shapiro said it is “highly unusual” for a circuit judge to weigh in on an unrelated case happening across the country.

Krehbiel also noted that Ho’s concurrence seemed to be in line with the arguments the Trump administration has been making about district courts’ authorities, as it urges the Supreme Court to roll back the ability for trial judges to issue nationwide injunctions.

“It may not be an accident that he has been mentioned as a potential future Supreme Court nominee in the event of a vacancy, and so this concurrence may at least in part be a means of publicly stating his views on a topic of importance to the administration,” Krehbiel said.

Kenneth Manning, a University of Massachusetts Dartmouth professor, noted that Wilkinson, considered a contender for a Supreme Court vacancy during the George W. Bush administration, is now past the age for elevation. That means he can push back against the administration while Ho might have a potential promotion in mind.

Manning also said that Wilkinson’s opinion fills a void in pushing back against the administration, as officials test the limits of noncompliance with court rulings.

“It’s a full-throated, clear-eyed opinion that doesn’t mince words,” Manning said.