Fifth Circuit’s Ho Calls on Judges to Embrace ‘Harsh Criticism’

A prominent conservative appeals court judge called on his colleagues to “get comfortable” with “harsh criticism,” even as judicial decisions that hinge on the US Constitution’s original meaning face backlash.

Judge James Ho of the US Court of Appeals for the Fifth Circuit on Wednesday spoke out against “fair weather originalism” in a lecture at the conservative Heritage Foundation in Washington, DC. Ho, appointed by then-President Donald Trump in 2018, spoke in favor of “originalism,” a judicial philosophy that calls for adherence to the Constitution’s meaning when it was first written.

“If you’re an originalist only when elites won’t be upset with you, if you’re an originalist only when it’s easy, that’s not principled judging,” Ho said.

Originalism is often favored by conservative jurists. Some prominent Democratic appointees, like Justice Ketanji Brown Jackson, have said they too believe they are originalists. Some originalist rulings, like the Supreme Court’s decision that overturned Roe v. Wade, have been celebrated by conservatives and criticized by progressives.

Ho returned to the theme of “fair weather originalism” two weeks before the Supreme Court will consider a ruling he joined that declared unconstitutional a law prohibiting people from possessing guns if they are subject to a domestic-violence restraining order. That Fifth Circuit decision, written by Ho’s colleague Judge Cory Wilson, followed the Supreme Court’s decision last year that created a constitutional right to carry a handgun in public.

Ho said that “when originalism leads to results despised by the cultural elites who lead the national discourse,” judges “face a concerted campaign of condemnation.”

“There have been plenty of threats about packing the courts. But there’s no need to pack the courts, when you can just pressure the courts, and get the same result,” Ho said.

Senior Judge Douglas Ginsburg of the US Court of Appeals for the DC Circuit, during a question and answer period, asked Ho about the pressure judges feel. Ginsburg said that he doesn’t have social media or read local newspapers, and that he doesn’t feel the same pressure that Ho described.

Ho replied by describing a conversation he had with Eugene Scalia, the son of the late Justice Antonin Scalia, when the judge was a summer associate at the law firm of Gibson Dunn. Ho said they were discussing the idea that some lawyers are not invited to parties due to media coverage of arguments they were making.

Eugene Scalia, also an attorney, asked him if he was enjoying the party they were attending, and when Ho said yes, Scalia asked, “do you want to be invited back?” Ho said that interaction “stuck with me.”

‘Discriminatory reasons’

Ho also decried what he called “viewpoint discrimination” against religious conservatives on college campuses.

“Expressing religious viewpoints gets you vilified. But claiming a right to eliminate a religious group gets you the benefit of the doubt,” the judge said, in an apparent reference to the ongoing war between Israel and Hamas. “Voicing traditional values makes people feel unsafe. But supporting terrorism against innocent civilians doesn’t.”

“Speech is violence—unless it’s speech that cultural elites like,” Ho said.

Ho, along with Eleventh Circuit Judge Elizabeth Branch, has previously said he will not hire students from Yale and Stanford law schools after conservative guest speakers there faced campus blowback from progressives.

During Wednesday’s question and answer session, Ho said that he has been urged by Yale law students to not end that boycott. He said they claim to have seen a “genuine change” at the the school but are worried it’s “fleeting.”