Ho, Oldham Battle Over ‘Gymnastics’ in Fifth Circuit Opinions

A pair of Fifth Circuit conservatives exchanged written blows as their full court declined to rehear a case for the second time in a week.

Judge James Ho criticized colleagues for making a “surprise switcheroo” in their position that he said could affect religious liberty litigation, while Judge Andrew Oldham accused Ho of tilting at “windmills that appear nowhere in this case.” The barbs are the latest example of federal judges publicly sparring in court opinions.

The underlying case centers on Richard Hershey, who sued after security officers told him to stop distributing his religious pamphlets on a public sidewalk, alleging that Bossier City, La., had failed to properly train those employees. A splintered US Court of Appeals for the Fifth Circuit three-judge panel in October revived his case against the city but agreed with a lower court finding that the officers were shielded by qualified immunity.

The Fifth Circuit on Thursday denied a request to rehear the case en banc on a 10-7 vote.

Ho, who was part of the original panel, said in a concurring opinion that the circuit was right to deny rehearing under its existing case law, even though he disagreed with those rulings. The Donald Trump-appointed judge said his colleagues who want to rehear Hershey’s case are bound by the en banc court’s decision in in Villarreal v. City of Laredo, which says parties must show clearly established case law with materially identical facts to overcome qualified immunity.

Ho said it’s possible that the other members of the court regretted their actions in Villarreal, but he wished they had said something before dissenting in Hershey’s case. He said his dissenting colleagues had done a “surprise switcheroo,” not unlike changes on policy positions that the circuit has criticized federal agencies for doing.

“I’d hold us to the same standard that we apply to others,” Ho said. “As imperfect human beings, we’re allowed to change our mind, of course. But we should be candid, not caustic, when we do so.”

The seven judges in favor of hearing the case—all Republican appointees—signed onto a dissenting opinion authored by Oldham, who was nominated to the court by Trump.

Oldham said Hershey didn’t allege anything about his religion in the case, even as he distributed writings from the Christian Vegetarian Association, and it wasn’t clear why Ho was invoking religious persecution and the history of street preaching.

“This quixotic effort does nothing to justify the panel’s badly splintered, three-judge-four-opinion approach to this case. And while it tilts at windmills that appear nowhere in this case, it does nothing to justify our court’s refusal to reconsider the matter en banc,” Oldham said.

Oldham said Ho and Senior Judge James Dennis “turn the world upside down” by creating a new rule that lowered the standard on constitutional violation claims for proving municipal liability on failure to properly train employees. He said that “sea change” should be more clearly addressed and laid out by the en banc court.

Ho pushed back against that suggestion in his concurrence, saying he sees “equal respect for religious liberty” when the circuit applies the standard for municipal liability for deprivation of constitutional rights.

Oldham also said he disagreed with Ho’s reading of the Villarreal cases, saying the context of that litigation limited its holding and didn’t “forever and for all reasons reject obviousness” of constitutional violations “as a ground for denying qualified immunity.”

The dissenters were also not rejecting the sincerity of Hershey’s religious beliefs, Oldham said, by noting that the plaintiff didn’t argue them. He quoted Ho in a 2021 case writing about the “principle of party presentation.” Oldham said that in the past, “members of our court” have cared about that issue.

“But in this case, the court apparently is an active instrument of government that can sally forth and right wrongs that Richard Hershey and his able counsel never imagined,” Oldham said.

He closed the dissent by saying Ho created an “imaginary case,” read circuit precedent to “create catastrophic consequences for religious liberty” without wanting to revisit it, and changed failure-to-train theory so it’ll “benefit hardened criminals.”

“You have to wonder what’s driving all of these gymnastics. I would have granted en banc rehearing to figure it out,” Oldham said.

Ho rejected that premise in his concurrence, saying that religious liberty groups should be wondering “about the unexplained changes of position that they’ve seen from this court.”

It was the second time in as many days that Ho and Oldham, both prominent conservative jurists considered potential Supreme Court picks, took opposite sides on an en banc vote. The judges on Wednesday were divided on the full court’s decision to not take up a case over a redone NLRB finding against an ExxonMobil subsidiary.

The case is Hershey v. City of Bossier City, 5th Cir. en banc, No. 21-30754, 12/18/25