There are no current vacancies on the Supreme Court. But the Donald Trump White House has said that it wants judges in the mold of the high court’s two oldest justices, Clarence Thomas and Samuel Alito. A new dissent that name-checks both justices is a reminder that one front-runner for any vacancy that emerges could be Judge James Ho, whom Trump previously appointed to a federal appeals court.
In his dissent, Ho invoked conservative talking points, like transgender sports participation, and railed against “cultural elites.”
The case decided Monday concerned Spectrum WT, an LGBT+ student organization at West Texas A&M University. A three-judge panel on the U.S. Court of Appeals for the 5th Circuit split 2-1 in ruling for the group that had raised a free speech claim. U.S. District Judge Matthew Kacsmaryk, the Trump appointee of mifepristone case fame, denied the group a preliminary injunction, reasoning that the First Amendment didn’t apply to the drag show. The appellate panel majority reversed the district judge, with George W. Bush appointee Leslie Southwick writing the opinion, joined by Clinton appointee James Dennis.
Southwick wrote that Kacsmaryk “erred in concluding that the plaintiffs were not substantially likely to succeed on the merits of their First Amendment claim.” The panel majority said the plaintiffs’ drag show is protected constitutional expression.
In his dissent, Ho argued that a 2010 Supreme Court precedent called Christian Legal Society (CLS) v. Martinez, which went against a student group that wanted to exclude gay people while receiving school funding, should’ve led the appellate panel to rule against the plaintiffs in this case. Writing that he disagrees with the CLS decision even as he’s bound by it, Ho said he “will not apply a different legal standard in this case, just because drag shows enjoy greater favor among cultural elites than the religious activities at issue in CLS.”
Obviously, the majority did not explain its ruling that way. One of the ways it sought to distinguish this case from the CLS case was by writing, “Instead of the significant interference with the right of expressive association that the Supreme Court permitted there, the university here was interfering with the expressive activity itself, the speech.”
At any rate, one implication of Ho’s dissent is that the majority did the untoward thing he valiantly refused to do: apply a double standard in service of some undefined “cultural elites.” Lawyers and judges generally bolster their points by citing authorities, but Ho didn’t do so there, nor did he explain which “elites” he was talking about. Perhaps we are supposed to understand implicitly — and perhaps we do. Though one wonders how “elite” is the group if it needs to wage a legal battle to put on a show?
Ho’s “cultural elites” remark was just the beginning, however. He added to his dissent’s culture-war complaints by positing that “if university officials allow men to act as women in campus events like drag shows, they may feel compelled to allow men to act as women in other campus events as well — like women’s sports.”
The judge conceded that drag shows and women’s sports “might seem, on first blush, to have little to do with one another.” But he proceeded to make the case, citing sources that included a book that worried, “If we accept that people can change genders — or even if we don’t but agree to be ‘polite’ and call a man ‘she’ — then why shouldn’t ‘she’ be allowed to play women’s sports or bathe naked in an all-women’s space? Why shouldn’t ‘she’ be allowed to enter women’s abuse houses or be transferred to a women’s prison? Why accept one lie and not the whole thing?” (To be clear, Ho included that full quote in his dissent.)
He also leaned on Alito’s dissent in the CLS case, which was joined by Thomas, Chief Justice John Roberts and the late Antonin Scalia. Ho separately cited Thomas’ concurrence in the recent Skrmetti case approving a gender-affirming care ban for minors, specifically where Thomas noted “several problems with appealing and deferring to the authority of the expert class.” Ho used the justice’s observation to bolster his point that “judges should not blindly trust experts in education, anymore than we should in any other field.”
It was the appeals court judge’s latest display of his willingness — and apparent eagerness — to step into any vacancy that Thomas or Alito might one day leave. If such a vacancy emerges, then so does the prospect of encountering Ho’s writings in Supreme Court opinions for decades to come.
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