YouTube)
“Too
many
judges
think
that
they’re
better
than
other
people,”
writes
Fifth
Circuit
Judge
James
Ho
in
a
new
piece
for
the
Harvard
Journal
of
Law
&
Public
Policy.
“Too
many
judges
have
an
overinflated
view
of
their
intelligence
and
their
abilities.”
For
my
money,
judicial
arrogance
and
an
“overinflated
view
of
their
intelligence
and
their
abilities”
would
look
like
basing
a
politically
motivated,
but
legally
dubious
Second
Amendment
opinion
around
a
bunch
of
cases
that
conclude
the
opposite
way
if
the
judge
bothered
to
read
them.
Or
maybe
using
their
perceived
clout
to
blackmail
a
law
school
for
not
disrespecting
student
speech
enough.
Those
would,
of
course,
describe
Judge
James
Ho.
To
quote
Sterling
Archer,
“This
is
like
O.
Henry
and
Alanis
Morissette
had
a
baby
and
named
it
this
exact
situation.”
But
Ho’s
broadside
against
judicial
arrogance
does
not
begin
from
a
point
of
honest
self-assessment.
Serious
law
journal
submissions
don’t
credulously
include
the
phrase
“woke
Constitution,”
after
all.
Instead,
the
judge
embarks
on
yet
another
rhetorical
thirst
trap
aimed
squarely
at
Donald
Trump.
Churning
out
inflammatory
separate
opinions
can
only
go
so
far
to
burnish
the
resume
of
a
Supreme
Court
hopeful.
It’s
a
challenge
to
stay
top
of
mind
in
MAGA
politics!
That’s
why
judges
use
their
free
time
to
pick
fights
with
law
schools
and,
as
here,
write
articles
supporting
the
president’s
fragile
ego
against
the
broad
array
of
judges
across
the
political
spectrum
constantly
ruling
against
the
White
House.
Too
many
judges
think
they
know
politics—when
they
don’t.
Too
many
judges
think
they
know
national
security—when
they
don’t.
In
short,
too
many
judges
have
forgotten
the
virtue
and
value
of
humility.
And
I
think
a
big
part
of
the
blame
goes
to
the
notion
of
judicial
supremacy.
It’s
a
curious
charge
to
level,
given
that
the
judges
he’s
mad
at
are
pointedly
not
trying
to
know
politics
or
national
security.
The
administration’s
beef
is
with
judges
who
have
refused
to
look
the
other
way
or
bend
the
rule
of
law
to
satisfy
politicians
draping
illegal
actions
in
“national
security”
rhetoric.
This
is
the
same
judge
who
threw
a
public
tantrum
when
the
Supreme
Court
—
this
Supreme
Court
—
dared
to
suggest
the
government
couldn’t
summarily
deport
people
without
due
process
just
because
Trump
yelled
“gang
members!”
loud
enough.
Standing
with
the
rule
of
law
over
the
assertions
of
politicians
is,
as
any
student
of
Schoolhouse
Rock
would
understand,
the
whole
point
of
the
Constitution’s
series
of
checks
and
balances.
To
that
near
universally
held
principle
dating
back
to
the
earliest
days
of
the
Republic,
Judge
Ho
says…
nuh-uh.
Did
someone
say
something
about
judges
being
arrogant?
It’s
often
said
that
the
judiciary
is
a
“co-equal”
branch
of
government.
You
hear
that
said
by
the
media,
and
by
legal
academics.
You
see
it
taught
in
schools
across
America.
But
it’s
wrong.
The
judiciary
has
an
important
role
in
our
constitutional
republic.
But
it’s
a
limited
one.
Judges
don’t
write
the
law.
Judges
don’t
execute
the
law.
And
that’s
for
one
simple
reason.
Yes…
they
don’t
write
law
or
execute
law
because
the
judiciary
is
the
third
branch
in
that
checks
and
balances
scheme.
But
Ho
waves
away
this
conclusion
to
proclaim
the
reason
is
“As
Americans,
we
believe
that
we
can
govern
ourselves.”
Which,
in
context,
Ho
believes
should
mean
the
political
branches
should
have
unfettered
authority
because
they
can
just
be
voted
out.
That’s
not
a
particularly
“originalist”
argument,
to
the
extent
originalism
is
about
interpreting
the
law
from
the
context
of
its
original
understanding,
but
it’s
a
paradigmatic
originalist
argument
to
the
extent
originalism
is
just
PR
fluff
for
contemporary
Republican
party
priorities.
Originalism
means
the
executive
branch
has
no
power
without
Congress
when
Democrats
are
president…
and
rubberstamping
disappearing
people
to
gulags
in
the
middle
of
the
night
when
Republicans
are
in
the
White
House.
But,
against
all
odds,
Judge
Ho
attempts
to
square
his
pet
fig
leaf
philosophy
with
the
argument
he’s
making
off
the
top:
The
American
people
expect
judges
to
use
our
independence
to
follow
the
law—nothing
more,
nothing
less.
And
that’s
the
whole
point
of
originalism.
Well,
no.
Originalism
is,
by
design,
porting
a
bunch
of
cherry-picked,
off-brand
history
into
judicial
decision-making
whenever
“following
the
law”
doesn’t
work
out.
Remember
when
the
judge
wrote
earlier
that
too
many
judges
think
they
know
subjects
that
they
don’t?
History
should
be
top
of
that
list.
Judge
Ho’s
complaint
when
it
comes
to
originalism
is
that
he
thinks
judges
too
often
depart
from
“originalism”
to
cater
to
the
public,
even
though
the
whole
first
half
of
his
article
complained
that
judges
aren’t
doing
enough
to
support
whatever
the
superior
political
branches
of
government
want.
But
his
faith
that
“As
Americans,
we
believe
that
we
can
govern
ourselves,”
runs
only
so
far
as
the
public
chooses
to
govern
itself
the
way
Donald
Trump
might
want.
It’s
not
an
intellectually
consistent
argument,
but
it
is
one
that
curries
favor
with
the
Mad
King
who
holds
one’s
future
career
prospects
in
his
tiny
little
hands.
And
since
every
accusation
is
an
admission,
Judge
Ho
spills
some
ink
trying
to
paint
the
adversaries
he’s
shadowboxing
as
the
real
hypocrites.
They
vigorously
defend
district
judges
against
criticism—unless
those
judges
live
in
Texas
or
Florida.
They
strenuously
condemn
forum
shopping—but
not
if
the
courts
are
in
Boston
or
San
Francisco.
It’s
about
receipts,
Jimbo.
Judge
Ho
doesn’t
want
to
get
into
specifics
with
this
topic,
because
his
past
efforts
to
make
it
make
sense
haven’t
gone
so
well
for
him.
The
Texas
judge
he’s
alluding
to,
Matthew
Kacsmaryk,
sits
in
a
single-judge
courthouse
and
right-wing
activists
—
which
was,
of
note,
Kacsmaryk’s
job
description
before
joining
the
bench
—
used
this
hack
to
create
astroturfed
plaintiffs
and
get
nationwide
injunctions.
This
is
different
than
bringing
cases
in
Boston
in
two
ways:
(1)
bigger
cities
mean
more
people
with
legitimate
claims,
meaning
a
case
in
Boston
is
far
less
likely
to
involve
activists
inventing
an
organization
a
few
months
before
just
to
manufacture
a
favorable
venue,
and
(2)
a
case
in
Boston
is
still
randomly
assigned
to
a
judge
in
that
district.
Comically,
Judge
Ho
will
later
complain
about
district
judges
as
opposed
to
appellate
panels
and
only
manage
to
prove
how
ridiculous
it
is
to
conflate
Amarillo
and
Boston:
[District
court]
decisions
are
typically
made
by
just
one
district
judge.
They’re
the
only
members
of
the
judiciary
who
can
exercise
the
judicial
power
of
the
United
States
without
anyone’s
consent
but
their
own.
With
unilateral
power,
there’s
unique
danger
that
some
district
courts
may
get
off
track.
Exactly.
The
fact
that
a
party
can
use
a
single-judge
courthouse
to
chose
the
precise
judge
to
wield
all
this
unilateral
power
is
what
differentiates
these
categories
of
forum
shopping.
They
strongly
oppose
the
impeachment
of
judges—except
when
those
judges
are
named
Thomas
or
Alito.
They’re
happy
to
impeach
a
President
for
an
alleged
abuse
of
power—but
horrified
if
anyone
even
suggests
impeaching
a
judge
on
the
same
basis.
Well,
the
distinction
might
be
that
Judge
Boasberg
is
catching
heat
for
authorizing
subpoenas
for
phone
records
of
sitting
legislators
based
on
probable
cause
that
they
were
communicating
with
actors
in
a
criminal
conspiracy.
People
talk
about
impeaching
Justices
Alito
and
Thomas
because
they
took
money
under
the
table
from
people
with
direct
and
indirect
business
before
the
court
and
didn’t
disclose
it
as
legally
required.
Judge
Ho
is
no
stranger
to
trying
to
blow
off
Justice
Thomas’s
ethical
issues,
but
at
least
back
then
he
tried
to
back
up
his
argument.
Hey,
look,
if
a
federal
judge
ever
steals
classified
documents,
refuses
to
return
them,
and
then
has
their
lawyer
lie
to
law
enforcement
about
complying,
we’ll
all
agree
to
impeach
them
too.
Back
in
March,
Judge
Ho
left
the
Federal
Judges
Association
because
he
was
angry
that
they
issued
a
statement
about
judicial
safety.
He’s
going
to
double
down
on
that.
They’ve
even
politicized
judicial
security.
Today,
they’re
fearful
when
a
judge
receives
an
unsolicited
pizza
delivery
at
home.
But
just
a
few
years
ago,
they
applauded
when
swarms
of
protestors
disrupted
certain
Justices’
homes
for
weeks
on
end.
Fuck
you,
man.
Those
pizza
deliveries
are
arriving
in
the
name
of
a
federal
judge’s
murdered
son.
The
message
those
pizza
deliveries
intend
to
send
is
“we
know
where
you
live,
and
remember
what
happened
to
Judge
Salas’s
son.”
Even
if
we
grant
Judge
Ho’s
generous
and
evidence-free
assumption
that
the
people
sending
those
pizzas
are
just
trolls
who
don’t
plan
to
follow
through,
this
is
an
act
of
violent
intimidation.
The
“swarms
of
protestors,”
Judge
Ho
describes
as
bothering
the
justices
“for
weeks
on
end.”
In
contrast
to
the
pizza
delivery
threats,
the
protestors
he’s
talking
about
set
up
on
public
property
outside
the
justices’
homes
and
picketed
for
20-30
minutes
at
a
time.
No
one
at
the
time
alleged
that
the
protestors
made
any
violent
threats
—
direct
or
implied
—
beyond
mere
proximity.
And
protesting
outside
someone’s
house
perhaps
should
be
off-limits,
but
the
Supreme
Court
itself
decided
to
bless
the
practice
when
they
ruled
that
nutjobs
can
camp
out
in
front
of
the
homes
of
abortion
doctors.
It
was
all
fun
and
games
until
they
had
to
live
under
the
same
laws
they
imposed
on
everyone
else.
Speaking
of
arrogance.
So
Judge
Ho,
in
his
quixotic
attempt
to
be
Donald
Trump’s
best
judicial
boy,
went
to
a
law
journal
to
dismiss
judges
for
thinking
“A
$20
large
pepperoni
is
an
outrage,”
deliberately
refusing
to
acknowledge
the
context.
There’s
not
even
a
footnote
mention
of
the
name
attached
to
these
pizza
orders,
let
alone
what
that
would
mean.
Judge
Ho
used
a
Harvard
Law
platform
to
simultaneously
make
light
of
the
judges
receiving
violent
harassment
and
spit
on
Judge
Salas’s
tragedy.
I
know
sitting
on
the
Supreme
Court
is
cool,
but
is
it
really
worth
bringing
this
kind
of
poison
into
your
soul?
Not
Enough
Respect
for
the
Judiciary—Or
Too
Much?
[Harvard
Journal
of
Law
&
Public
Policy]
Earlier:
Judge
Ho
Indulges
In
Furious
Rage
Wank
Over
AEA
Deportations
Judge
Ho
Apparently
Didn’t
Bother
To
Read
The
Cases
He
Cited
In
Domestic
Abuser
Gun
Opinion
Federal
Judges
All
But
Admit
Yale
Law
School
Boycott
Was
A
Ruse
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or
Bluesky
if
you’re
interested
in
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and
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sports
news.
Joe
also
serves
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Managing
Director
at
RPN
Executive
Search.
Kathryn
