It’s always been a myth that the federal judiciary is a non-partisan entity floating above the fray of politics, no matter how much certain Supreme Court justices would like to pretend otherwise. It is thus almost refreshing, in a perverse sort of way, that many of Trump’s lower court judges have made a habit of cheerfully and unapologetically infusing their legal opinions with their brand of extreme right-wing conservative politics.
During his single term in office, Trump appointed 54 judges to the federal circuit courts—only one less than Obama notched in two terms. His appointees skewed young, as far as federal judges go, with an average age of 47 at the time of their appointment. Trump may be gone from the White House, but his judges remain, burrowed into the federal judiciary and free to wreak havoc on the civil rights of people they don’t like for the next several decades.
Even on a federal appeals court nearly entirely captured by Republican appointees, Fifth Circuit Court of Appeals Judge James Ho has already managed to distinguish himself as among the most zealous robed cultural warriors. Only a month after taking the bench in January 2018, he was writing a grumbling dissent in a campaign finance case that reads more like mediocre Ayn Rand fanfiction than a legal argument. “If you don’t like big money in politics, then you should oppose big government in our lives,” he declared. “When government grows larger, when regulators pick more and more economic winners and losers, participation in the political process ceases to be merely a citizen’s prerogative—it becomes a human necessity.”
More recently, Ho wrote an eyebrow-raising concurrence in Whole Women’s Health v. Paxton, in which the Fifth Circuit upheld a Texas law banning the use of the dilation and evacuation procedure for abortions. Ho was already on the winning side in that case, but wrote separately to provide a lengthy history on germ theory, complaining that scientists are “susceptible to peer pressure, careerism, ambition, and fear of cancel culture” and musing that one day We as a Society might look back on the science of abortion care the same way we do 19th-century skepticism of hand-washing. It’s a concurrence that doesn’t meaningfully work to extend the law, but works very well to undermine judicial reliance on well-settled scientific facts, on the subjects of abortion and anything else he doesn’t like.
Ho’s right-wing editorializing continued a few months ago after the Fifth Circuit declined to rehear a legitimately horrifying case in which two police officers tased a man they knew to be doused in gasoline, setting him on fire and burning him alive. After an initial three-judge panel granted the police officers qualified immunity, Ho wrote what journalist Cristian Farias called “the worst line ever written in a judicial opinion”: In the service of complaining that it’s way too hard out there for cops who don’t have unfettered discretion to burn people alive, Ho wrote, “As judges, we apply our written Constitution, not a woke Constitution,” apparently angling to get quoted on the air by right-wing radio hosts the next day.
These are not the writings of a serious person. They’re the musings of a Twitter troll who landed a cushy lifetime gig. But these types of concurrences serve as an invitation to right-wing litigants to bring ever-more extreme cases, and Ho has previously been sympathetic to arguments about how same-sex marriage is bad, torture is good, and doctors are perhaps secretly pushing children to gender-transition. This is off-the-wall stuff, but when the Supreme Court reviewing your work is stacked with six ultraconservatives who agree with you, you don’t really need to worry about being embarrassed by a reversal of your decision.
When the Supreme Court reviewing your work is stacked with six ultraconservatives who agree with you, you don’t really need to worry about being embarrassed by a reversal of your decision.
Ho has plenty of competition in this space, though. In June 2019, Trump nominated Justin Walker to the U.S. District Court for the Western District of Kentucky, where he remained for about a year before ascending to the D.C. Circuit. Walker, a longtime protege of Senate Minority Leader and noted libs-owning enthusiast Mitch McConnell, is best-known for making an incredible 119 media appearances to defend Justice Brett Kavanaugh, for whom Walker previously clerked, during his 2018 Supreme Court confirmation battle. Loyalty to the conservative legal movement, as it turns out, has its rewards.
In an early pandemic-era case, Walker took a vague plea from Louisville’s mayor that people stay home on Easter rather than spreading a deadly virus and pivoted to a full-throated roar about the sanctity of religious freedom. He declared that Louisville’s mayor had “criminalized the communal celebration of Easter.” He wrote an amateur history of pilgrims, stretching all the way back to Noah, Enoch, and other Biblical luminaries. He apparently neglected, however, to actually talk to the city, at which point he could have found out whether the mayor had actually issued the formal ban Walker was so mad about. (No, the mayor explained.) Why fulfill one of the most basic tasks of being a judge—checking in with litigants to see if you need to issue a ruling—when you could conjure up a phantom religious freedom fight and praise the pilgrims instead?
Before taking the bench alongside Ho in 2019, Kyle Duncan was a high-profile Federalist Society guy who litigated against same-sex marriage and trans rights and served as one of the lead attorneys for Hobby Lobby in their successful quest to stop employees from getting birth control. Now that he’s a Fifth Circuit judge, Duncan is waging the same culture war from within the legal system. In 2020, he wrote the majority opinion in a case denying an incarcerated trans woman’s request that she be allowed to change her name and to be referred to by female pronouns.
In an opinion that misgendered the woman throughout, Walker explained that requiring courts to use preferred pronouns “could raise delicate questions about judicial impartiality.” Since judges are deciding cases that “turn on hotly-debated issues of sex and gender identity,” if a judge were to use a person’s preferred pronouns, the court may “unintentionally convey its tacit approval of the litigant’s underlying legal position.” Yes, a life-tenured appeals court judge’s position is that word choice will somehow render them irresistibly drawn to ruling in favor of trans litigants.
In judge-adjusted terms, all of these guys are young up-and-comers. Neither Ho nor Duncan are 50, and Walker hasn’t even cracked 40. Ho’s name was also on Trump’s Supreme Court shortlist, which means that the untimely death of, say, Justice Stephen Breyer very well could have given us three-plus decades of Justice James Ho, along with a spirited contest between him and Sam Alito for the title of the Court’s Fox Newsiest justice.
Conservatives don’t actually need Ho, or Duncan, or Walker on the Supreme Court, though; from their perch in the appellate circuits, these judges can do plenty of damage on behalf of the conservative legal movement. Since the Court only hears a tiny fraction of the petitions for review filed every year, every one of their reactionary decisions that stand shifts the law in those circuits further to the right, and those that do make it before the Court’s 6-3 conservative supermajority are less likely than ever to be overruled. There is, in other words, no meaningful constraint on James Ho and Kyle Duncan and Justin Walker and company using the Federal Reporter as a glorified MAGA Twitter account for the foreseeable future. The law—and, more importantly, the law’s implications for the millions of people who have to deal with the consequences—is going to get a lot worse a lot faster as a result.
