Objection! / September 15, 2023

James Ho Wants to Be the Next Clarence Thomas

The Fifth Circuit judge is a far-right extremist and provocateur—and he’s angling for a seat on the Supreme Court.

Elie Mystal
(Tom Williams / CQ Roll Call)

On August 16, the Fifth Circuit Court of Appeals issued a ruling that, if upheld by the Supreme Court, will significantly restrict access to mifepristone, one of two drugs used in a regimen to induce an abortion. The unanimous ruling by a three-judge panel—all Republican appointees—reduces the window during which the drug can be taken and blocks access to it through telehealth and the mail. But one of the judges, James Ho, wanted to go even further; in a concurring opinion, he argued that the Food and Drug Administration’s 2000 approval of the drug should be revoked. To justify this extreme position, he contended that the litigants—a group of forced-birth doctors who had neither used nor prescribed mifepristone and therefore should have had no standing in the case—had a right to sue under a new kind of harm contrived by Ho: “aesthetic injury.” “Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted,” Ho wrote.

I’ve been studying law for 23 years, and I cannot tell you what that sentence means as a legal principle. If Ho is suggesting that everybody has a right to sue if they are deprived of the scenery they like, then I can sue every plastics company whose trash ruins my beach vacation. If Ho is simply surfacing some kind of weird fetus fetish, he could use the same theory to sue any company that markets a contraceptive. Ho himself admits that he’s cribbing his theory from cases involving… wildlife. He references cases in which people who have “concrete plans” to visit a natural habitat to see an animal are “harmed” if the government approves a project that endangers that animal. Ho places doctors who want to see women give birth against their will on the same footing as conservationists who want to see gopher frogs before they disappear.

In a normal country, such inane and insulting legal theories would end Ho’s career as a serious legal scholar and relegate him to a Judge Jeanine–style career of spouting wine-drunk legal theories designed to keep people tuned in until the next pillow ad. But in this country, under a Republican administration, Ho’s complete disregard for precedent, hostility to logic, and seething hatred for women and pregnant people might just make him the next associate justice of the Supreme Court.

Since his appointment to the Fifth Circuit by Donald Trump in 2018, Ho has been campaigning to replace the oldest current Supreme Court justice and the one most likely to retire under the next Republican presidential administration: Clarence Thomas. Ho, a darling of the Federalist Society, has been groomed for exactly this purpose. He attended elite universities (Stanford for college, the University of Chicago for law school). He clerked for Thomas. He’s taken all the right jobs to rise up the conservative ranks—including serving as the solicitor general of Texas. (He succeeded Senator Ted Cruz in that role and was replaced by Jonathan Mitchell, the creator of Texas’s fugitive uterus bill, which placed a bounty on people who provide help to those seeking abortions.) And he seems to be in with the real power players in the Republican judge-making apparatus: the donor class. Indeed, Ho was sworn in as a Fifth Circuit judge by Thomas in—wait for it—Harlan Crow’s personal library.

To be sure, there are dozens of federal judges who can boast the same kind of accursed credentials. What makes a Republican judge stand out from the pack these days is a willingness to seek new and creative ways to do evil, and to be seen while doing it. Ho has this part of the game down pat. I mentioned that his mifepristone ruling was a concurrence, which means he went out of his way to put his women-are-like-manatees theories on paper. But that’s not even his most awful concurrence this year. In US v. Rahimi, a case about whether guns can be taken away from domestic abusers, Ho wrote that men who are subject to restraining orders should still keep their guns because, he contends, spurned women sometimes use restraining orders as a “tactical device” to harass their exes. Ho initially wrote a short concurring opinion, but after public outrage (including mine) over his characterizations, he issued a much longer screed to more fully develop his deep concerns about evil she-witches.

Ho’s attempts to get Republican presidential candidates to notice him doesn’t stop when he’s off the judicial clock. When he’s not articulating legal theories based on a nightmare he had after watching Maleficent, he travels around the country giving talks at law schools where he decries “cancel culture.” Then he turns around and demands that legal employers cancel law students who engage in civil disobedience by protesting him and judges like him. Ho writes like Andrew Dice Clay took a constitutional law course at the Vatican, then lashes himself to a cross every time his opinions are ridiculed.

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Ho is on the right track. Whether he’s defending Thomas’s unethical behavior, or writing a 600-word rant bemoaning judges who don’t use the word “alien” when referring to immigrants, Ho always seems ready with a speech or an opinion that infuriates non-Republicans. It’s a key part of his strategy, and it’s worked for others. The last two Republican justices—alleged attempted rapist Brett Kavanaugh and Amy Coney Barrett—were nominated in part because their behavior, associations, or personal histories rightly outraged liberals, and then they complained about being treated unfairly by the people who organized to stop them from reaching the highest court. “Owning the libs” is the primary currency in Republican party politics.

Ho’s overall strategy puts liberal court watchers like me in a bit of a bind. Ignore him, and you’re ignoring one of the greater threats on the legal landscape, a man whose judicial mission would turn women into broodmares with second-class rights. Highlight him, and you make him all the more attractive to Trump, Ron DeSantis, or whichever cut-rate fascist oozes to the top of the Republican ticket.

My only solution is this: Joe Biden must win the 2024 election. If he doesn’t, James Ho—or one of the handful of Republican justices running to out-evil him—will be coming for our rights. That’s all the motivation I need to get out and vote.

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Elie Mystal

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

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