The Scariest Court in America feat. Steven Monacelli & Dr. Michael Phillips

Summary

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Podcast Summary:

It Could Happen Here – "The Scariest Court in America" feat. Steven Monacelli & Dr. Michael Phillips
Release Date: March 24, 2026

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Episode Overview

This episode of It Could Happen Here dissects the dramatic rightward shift of the U.S. Fifth Circuit Court of Appeals and profiles Judge James Ho—described as one of America’s most extreme and controversial jurists. Hosts Steven Monacelli and Dr. Michael Phillips, joined by civil rights law professor Dr. Leo Yu, trace the historical evolution of the Fifth Circuit, spotlight its pivot from civil rights champion to reactionary power, and assess the profound nationwide consequences of its recent rulings on abortion, gun rights, LGBTQ expression, labor, and birthright citizenship.

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Key Discussion Points & Insights

1. Who is Judge James Ho?

(03:18 – 08:23)

• James Ho’s meteoric rise:
  • Born in Taiwan, Stanford graduate, clerked for Justice Clarence Thomas, succeeded Ted Cruz as Solicitor General of Texas.
  • Played a minor but pivotal role in Bush v. Gore (2000), boosting George W. Bush to the presidency.
• Controversial connections:
  • Sworn in at billionaire Harlan Crow’s mansion, a site infamous for holdings of Nazi memorabilia and statues of dictators ("the Garden of Evil").
  • Ho is mentioned as part of circles linked with other right-wing judicial luminaries.
• Ho’s judicial style:
  • Known for “weirdly written and extreme opinions”—for example, questioning birthright citizenship and suggesting that abortion “injures doctors” by depriving them of delivering babies.

Quote:
“Ho has become infamous for weirdly written and extreme opinions… such as suggesting that the children of migrants might not be eligible for birthright citizenship because the country is being, quote, invaded.”
(Steven Monticelli, 07:48)

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2. The Fifth Circuit’s Progressive Roots

(08:23 – 14:54)

• Origins as a force for civil rights:
  • Named for John Minor Wisdom, part of the "Fifth Four," a liberal bloc that championed desegregation throughout the 1950s-70s.
  • Rulings desegregated schools, universities (notably University of Mississippi), public venues, and struck down racist voting laws.
• Turning point:
  • Despite early efforts to have John Minor Wisdom appointed to the Supreme Court, political barriers blocked it.
  • The Fifth Circuit was once renowned for affirmative action and LGBT student rights.

Quote (Wisdom’s opinion):
“The Constitution is both colorblind and color conscious... it is colorblind to avoid conflict with the equal protection clause, but color conscious to prevent discrimination and undo the effects of past discrimination.”
(Narrator, 13:07)

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3. How the Fifth Circuit Became ‘the Scariest Court in America’

(18:27 – 23:05)

• Reorganization and Conservative Ascendance:
  • In 1981, split further south to form the Eleventh Circuit. Today: 12 of 17 active Fifth Circuit judges appointed by Republicans; six by Trump.
• James Ho as the Standard-bearer:
  • Trump-era and subsequent appointees now dominate, making the court particularly receptive to far right arguments, especially in contentious issues like abortion and gun rights.
  • Ho works closely with organizations like First Liberty Institute—pushing Christian nationalist policy, challenging abortion and LGBT rights.

Quote:
“On every crucial but controversial legal issue, Jim Ho is constantly the tip of the spear.”
(Mike Davis, 19:33)

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4. Recent Landmark Rulings and Controversies

(23:05 – 46:13)

Abortion and Mifepristone Case

(23:05 – 34:02, 31:00 – 33:21)

• The Fifth Circuit, including Ho, upheld dramatic restrictions on the abortion pill mifepristone after anti-abortion groups sued in Judge Kacmarek’s court.

• Ho’s concurring opinion claimed not only doctors, but society at large, was injured by abortion, using outlandish arguments:

  Quote:
  “Doctors delight in working with their unborn patients and experience an aesthetic injury when they are aborted.”
  (Ho, 32:55)

• Dr. Leo Yu suggests Ho’s writings are less about legal rigor and more about auditioning for the Supreme Court:

  “He is auditioning all the time... creating something that is quite honestly just not even sensible...” (Yu, 34:02)

The Fifth Circuit vs. Supreme Court

(34:59 – 37:48)

• Supreme Court (even its conservative majority) has repeatedly overturned the Fifth Circuit’s outlier rulings—including those on abortion and gun rights.
• Justice Kavanaugh warns that the Fifth’s logic on standing would “make governing impossible” (35:47).

Free Speech, LGBTQ & Drag Ban Cases

(38:28 – 43:00)

• Fifth Circuit showed willingness to allow censorship of drag shows, while upholding the right of states to require religious postings (like the Ten Commandments).

• Ho dissented from panel decisions protecting LGBTQ events, parroting “inclusivity” rationale used to justify bans:

  Quote:
  “University officials have determined that drag shows are sexist for the same reason blackface performances are racist…”
  (Ho, 41:44)

Labor Rights and NLRB Case

(44:20 – 45:44)

• Ruled against National Labor Relations Board (NLRB), threatening workers’ ability to organize; this ruling conflicts with Ninth Circuit and is likely headed to the Supreme Court.

Rare Exception: Postal Worker Racism Case

(45:07 – 46:13)

• One instance where the Fifth Circuit permitted a suit against USPS for allegedly racist mail suspension, but the Supreme Court overturned it.

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5. Birthright Citizenship—Is It Next?

(46:46 – 49:59)

• Ho’s earlier writings supported birthright citizenship but he now invokes “invasion” theories to argue for stripping it from children of undocumented migrants.
• Supreme Court now set to rule on Trump’s executive order denying birthright citizenship—Dr. Yu expects some rollback, but not to Ho’s “invasion” extreme:

Quote:
“Birthright citizenship obviously doesn’t apply in case of war or invasion… It’s like the debate over unlawful combatants… hard to see anyone arguing that unlawful combatants should be treated more favorably.”
(Ho, 48:34)

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6. Will James Ho Make the Supreme Court?

(49:59 – 53:18)

• With Supreme Court justices Thomas and Alito nearing potential retirement, speculation mounts about Ho’s ambitions.

• Dr. Yu predicts Ho may be “too blunt” for Federalist Society gatekeepers, and considers Ted Cruz more likely for a vacancy:

  Quote:
  “They’re looking for a conservative… but Justice Ho is not in their favor— they want someone who is more sophisticated, able to rewrap the message with academic legitimacy.”
  (Yu, 51:24)

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Notable Quotes & Moments (with Timestamps)

• On Ho’s rise and connections:
  “Ho's swearing in ceremony took place at the mansion of Dallas real estate billionaire Harlan Crow... The surroundings included…a collection of Nazi memorabilia…”
  (Steven Monticelli, 05:56 – 07:12)

• On the Fifth Circuit’s legacy:
  “In the 1950s and 1960s [the Fifth Circuit] issued a series of revolutionary rulings that advanced the civil rights movement.”
  (Steven Monticelli, 08:41)

• On the court’s transformation:
  “If [Wisdom] miraculously returned, he would not recognize the appeals court that he spent so much of his life serving.”
  (Steven Monticelli, 14:54)

• On the drag show decision:
  “Banning drag shows somehow advanced inclusivity.” (Ho’s dissent paraphrased, 41:34–41:44)

• On religious law in classrooms:
  “The Louisiana law was not only constitutional, Ho said, it affirms our nation’s highest and most noble traditions.”
  (Michael Phillips, 43:32)

• On Ho’s ambitions:
  “He is auditioning... it’s not a secret he’s trying to get there [Supreme Court], but I honestly think it’s not going to be him.”
  (Leo Yu, 51:24)

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Takeaways & Conclusion

• The Fifth Circuit, especially under Judge James Ho, now serves as a vanguard for far-right legal activism, repeatedly promoting decisions that even the conservative Supreme Court finds outlandish or embarrassing.
• The court wields enormous influence on abortion access, gun control, church-state separation, LGBTQ rights, labor law, and immigration not only in its region but for the entire country—sometimes until the Supreme Court intervenes.
• James Ho is a figurehead of this new reactionary judicial activism, and while his ascent to the Supreme Court isn't guaranteed, his rulings signal the future direction of many key rights and freedoms for millions of Americans.

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Additional Resources

• Further reading listed in episode descriptions on CoolZoneMedia.com.
• Follow-up on Supreme Court decisions referenced in the episode for developing legal impacts.

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Transcript

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[Narrator/Voice Actor]

cool Zone Media

[Michael Phillips]

I'm Michael Phillips, an historian and the author of a book about racism in Dallas called White Metropolis and the co author with longtime journalist Betsy Freehoff, of a history of eugenics in Texas called the Purifying Knife.

[Steven Monticelli]

STEPHEN I'm Steven Monticelli. I'm a journalist who specializes in covering political extremism and far right Internet culture for the Texas observer, the Barbed Wire and other publications. Today we'll be talking about the Fifth Circuit, and we'll start with a man named James Ho, who on what might have been the biggest day of his judicial career so far, couldn't have picked a creepier setting.

[Michael Phillips]

The 52 year old's legal career has rocketed forward at light speed. Born in Taiwan and a graduate of Stanford, he signed up as an attorney for the white shoe law firm Gibson Dunn in California. In 2000, at age 27, he joined a high powered legal team that forever shaped the history of the United States.

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From NBC News in Washington, this is MEET THE Press with Tim Russert.

[Steven Monticelli]

Our issues this Sunday, 36 days after the election, Al Gore ends his campaign. For the sake of our unity as a people and the strength of our

[Leo Yu]

democracy, I offer my concession.

[Steven Monticelli]

George W. Bush will be the 43rd president of the United States.

[Michael Phillips]

I'm thankful to the American people for

[Narrator/Voice Actor]

the great privilege of being able to serve as your next president.

[Steven Monticelli]

Young and almost entirely unknown outside of legal circles, James Ho joined some of the most famous conservative lawyers in the country in the year 2000 to convince the United States Supreme Court to stop the hotly contested presidential vote count in Florida. That move elevated President George W. Bush to the White House. In this effort, James Ho rubbed shoulders with right wing luminaries like the man who in five years would be the chief justice of the Supreme Court, John

[Michael Phillips]

Roberts Ho rocketed to judicial superstardom. He clerked for Supreme Court Justice Clarence Thomas for a couple of years. Then from 2008 to 2010, he succeeded Ted Cruz as solicitor general of Texas. There he handled appeals filed by the state in cases heard by the state supreme court and the US Supreme Court. On January 4, 2018 host celebrated his next rapid climb up the judicial ladder when he is sworn as the newest judge on the United States fifth Circuit Court of Appeals, which oversees federal cases that originate in Texas, Mississippi and Louisiana.

[Steven Monticelli]

Ho's swearing in ceremony took place at the mansion of Dallas real estate billionaire Harlan Crow. You've probably heard that name before because Crow has made news with the revelation that he lavished hundreds of thousands of dollars in gifts and favors on Supreme Court Justice Clarence Thomas, including cruises to Indonesian islands on the businessman's 162 foot superyacht and a $119,000 Bible that once belonged to leading abolitionist Frederick Douglass. Crow flew Thomas to Dallas on his private jet so the justice could swear in his former clerk. The surroundings included Crow's unnerving souvenirs once described on the program Inside Edition.

[Inside Edition Reporter]

Questions are being raised today about Supreme Court Justice Clarence Thomas friendship with a billionaire who collects Nazi memorabilia. Published reports say Dallas tycoon Harlan Crow's controversial collection includes Hitler's notorious autobiography, Mein Kampf, signed by Hitler, oil paintings by Hitler and linen napkins embroidered with the Nazi swastika. The collection is housed at Crow's mansion in Dallas. I can't get over the collection of Nazi memorabilia, said one guest who saw the Nazi treasure trove. You sort of just gasp when you walk into the room.

[Michael Phillips]

The estate also includes what Crow has called the Garden of Evil, a collection of imposing statues of past authoritarian leaders like Vladimir Lenin, Joseph Stalin, Mao Zedong, Nicolae Ceausescu, the eccentric Romanian tyrant violently deposed in 1989, as well as a bust of Gavrilo Princip, the Bosnian Serb nationalist who triggered World War I with his assassination of Austrian Archduke Franz Ferdinand. Crow claims that his collection is somehow a statement of his hatred for both communism and fascism.

[Steven Monticelli]

The creepy artwork perhaps foreshadowed Ho's ominous career in the fifth Circuit Court of Appeals. On that bench, he has become infamous for weirdly written and extreme opinions in which he has suggested that the children of migrants might not be eligible for birthright citizenship because the country is being, quote, invaded and that abortion actually somehow injures doctors because they are denied the intense pleasure of delivering babies. Those antics might lead him to one day occupy a seat on the United States Supreme Court, potentially succeeding Thomas or Samuel Alito, the two oldest justices on the nation's highest bench.

[Michael Phillips]

In this episode, we'll look at the career of Judge James Ho, his alarming right wing judicial activism and the strange history of the fifth Circuit Court of Appeals, which since the Reagan administration has transformed from one of the most liberal judicial bodies in the country to perhaps the scariest court in America.

[Steven Monticelli]

Given its current reactionary reputation, it's a bit ironic. The fifth circuit court convenes in a New Orleans courthouse named after John Miner Wisdom, A New Orleans native who formed a critical part of a quartet of liberal judges known simply as the four, who in the 1950s and 1960s issued a series of revolutionary rulings that advanced the civil rights movement. President Dwight Eisenhower appointed Wisdom to the bench in 1957. He quickly formed an alliance with three other liberal judges on the Fifth Circuit. Albert P. Tuttle of Georgia, John R. Brown of Texas, and Richard T. Rivis of Alabama. Rivis was the only democrat on the squad that came to be known as the Fifth four. These liberals typically prevailed over the conservatives serving on the 5th Circuit, and at that point, the 5th Circuit heard cases from states that spread across the core of the one time confederacy, Including Louisiana, Florida, Alabama, Mississippi, Texas and Georgia. This placed the fifth four on the front lines of the civil rights struggle.

[Michael Phillips]

In 1958, the Fifth Circuit began chipping away at Jim Crow. The court heard the case of Joe Dorsey, Jr. Of New Orleans, Challenging a Louisiana law that outlawed matches between black and white boxers. Wisdom wrote the majority opinion, which declared such legislation made a mockery of the equal protection clause of the 14th Amendment to the United States constitution. That opinion, like many Wisdom wrote, Would be upheld the following year by the supreme court that was presided over by chief Justice Earl Warren. Louisiana integrated boxing matches, but for years outside the ring, the arenas divided into black and white seating.

[Steven Monticelli]

In the coming years, the Fifth Circuit forced St. Helen Parish in Louisiana to reopen their schools. After that, school board voted to close all campuses to prevent integration. The fifth circuit court ordered the University of Mississippi to admit an African American student, James Meredith. In his opinion, Wisom wrote that Ole Miss, as it's known, had engaged in a carefully calculated campaign of delay, harassment and masterly inactivity. Riots broke out as federal troops had to enforce the order.

[News Archive Narrator]

James H. Meredith is formally enrolled at the University of Mississippi, Ending one chapter in the federal government's efforts to desegregate the university. The town of Oxford is an armed camp following riots that accompany the registration of the first negro in the university's 118 year history. Much of this film record was destroyed when our cameraman, Gordon Yoder, was attacked, but he did salvage pictures of governor Ross Barnett at the scene. The governor fought the court order long and bitterly before modifying his stand, saying Mississippi was overpowered by the federal government. President Kennedy appealed to the students and to the people of the state to comply peacefully with the law and bring the crisis to an end. Even as he talked, riots were breaking out in Oxford. Americans are free, in short, to disagree with the law, but not to disagree. Obey it for any government of laws and not of men. No man, however prominent or powerful, and no mob, however unruly or boisterous, is entitled to defy a court of law.

[Michael Phillips]

In 1963, the Fifth Circuit ordered the desegregation of community centers, cultural centers, playgrounds and public parks. The next year, the court ruled that jury selection system in Orleans Paris, where, as Wisdom noted, no black had ever sit on a grand jury or trial jury panel, violated the Constitution. Two years after that, the fifth Circuit overturned Louisiana's voter registration literacy test, which required a citizen to pass, in the judgment of white officials, a written test on the Constitution. Such laws had long disenfranchised impoverished African Americans and whites.

[Steven Monticelli]

Perhaps Wisdom's most significant opinion came with the 1968 United States v. Jefferson case, which blocked states from avoiding compliance with the Brown v. Board of Education decision by setting up so called school choice plans, in which parents allegedly freely chose to send their children to segregated schools.

[Narrator/Voice Actor]

Wisdom wrote, the Constitution is both colorblind and color consciousness. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm or imposes a burden must not be based on race. In that sense, the Constitution is colorblind, but the Constitution is color conscious to prevent discrimination from being perpetuated and to undo the effects of past discrimination.

[Michael Phillips]

Coining a phrase that would later ignite fierce white backlash against civil rights, north and South, Wisdom said school systems needed to move beyond ostensibly not discriminating and to take, quote, affirmative action to bring about a unitary, non racial system. That phrase would provide a legal foundation for school busing as a means of genuinely integrating schools, and also introduced the concept of affirmative action, hiring practices and and other stubborn aspects of racial exclusion.

[Steven Monticelli]

The Fifth Circuit's record of judicial progressivism continued through the 1970s. A 1976 decision by the Fifth Circuit, for instance, required public colleges and universities in Texas to recognize gay student organizations. Meanwhile, moderate Republicans tried to persuade Richard Nixon to nominate Wisdom for the United States Supreme Court.

[Michael Phillips]

However, Attorney General John Mitchell, who later went to prison for his role in the Watergate scandal, squashed the idea. He complained that the judge was a damn left winger who would supposedly be as bad as the famously liberal Chief Justice Warren. President Clinton would give Wisdom the Presidential Medal of Freedom in 1993. Wisdom died six years later.

[Steven Monticelli]

If he miraculously returned wisdom would not recognize the appeals court that he spent so much of his life serving. We'll talk about the transformation of the fifth Circuit of Appeals, the extreme and disturbing decisions that has made since the start of the Trump era, and the career of one of that court's most infamous judges when we come back from our hopefully less infamous sponsors.

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[Steven Monticelli]

In 1981, the federal judiciary was reorganized. The Fifth Circuit Court now heard appeals only from Mississippi, Louisiana and Texas. A new 11th Circuit Court now hears cases from Alabama, Georgia and Florida. We should provide a hopefully brief civics lesson here. The fifth court consists of 17 active judges and nine senior judges. When a side loses a case in a federal district court, they can appeal to a circuit court where the case is heard by a three judge panel. In some cases, if one side disagrees with the judgment of the panel, they may appeal the decision to the full judicial court.

[Michael Phillips]

Among the active judges, those appointed by Republican presidents outnumber those appointed by Democrats by a margin of 12 to 5. Donald Trump appointed more than a third of these judges, six in all. Each, of course, could serve on the court for the rest of their life. The fifth Circuit also has eight senior judges who are semi retired but preside over a limited number of cases. Six of them were also appointed by Republican presidents stretching back to Ronald Reagan.

[Steven Monticelli]

Even in that hyper conservative company, James Ho has stood out. Mike Davis, the president of The Pro Trump Article 3 projects, a group dedicated to pushing federal courts further right, has said, quote, on every crucial but controversial legal issue, Jim Ho is constantly the tip of the spear.

[Michael Phillips]

It has been a cliche among the American right wingers that liberal judges from the time of Franklin Roosevelt on had become judicial activists for abusing their positions on the bench to advance their political agendas rather than impartially ruling on the law calling balls and strikes. Ho's open political advocacy, however, has raised no alarms for those saying presume advocates for judicial neutrality.

[Steven Monticelli]

While he served as Texas's solicitor general, Ho did pro bono work for the First Liberty Institute, a Christian right organization headquartered in Plano, Texas, just north of Dallas that won a case for a Washington State high school football coach who was fired because he violated school policy by leading his team in prayer after each game. The group has also represented bakers who refused to make wedding cakes for same sex couples.

[Michael Phillips]

As a judge, Ho led a boycott of legal clerks who graduated from Yale Law School to punish that institution for its supposed leftist cancel culture and intolerance of conservative views. During a speech to the far right Heritage foundation, the authors of Project 2025, Ho ridiculed lawyers with, quote, fancy credentials, fancy law schools, fancy clerkships, fancy law firms and government jobs, he claimed that issued liberal opinions for no other purpose than winning popularity. He urged young conservatives to assert themselves against the supposed popularity of political correctness.

[Steven Monticelli]

In addition to serving on the bench, Ho could be considered an activist, particularly on culture war issues like abortion. He's condemned abortion as the immoral, tragic and violent taking of innocent human life. In 2018, he upheld a Texas law that required the cremation or burial of fetal remains, a potentially costly burden for women receiving medical treatment. And the state of Texas argued that any potential financial burdens to women or clinics were irrelevant since the Texas Conference of Catholic Bishops made a pledge to bury the remains for low cost or even for free. Such a promise, of course, was not legally binding.

[Michael Phillips]

A district court overturned the law, but Ho and the Fifth Circuit reinstated it, arguing that coerced burial protected religious freedom of the Catholic bishops. Quote, the First Amendment expressly guarantees the free exercise of religion, including the right of bishops to express their profound objection to the moral tragedy of abortion, ho wrote. Texas still requires that fetal remains receive burial or cremation. As we'll explain later, it's not only on the issue of abortion that Ho has staked out an extreme position. In Mance vs Sessions, the Fifth Circuit Court, by an 8 to 7 vote, narrowly avoided overturning a federal gun law that prohibited interstate gun sales. Ho offered a bitter dissent, quoting his mentor Clarence Thomas and complaining that in spite of the wide open access to firearms in this country, the Second Amendment had become, quote, a second class right. In his opinion, Ho ridiculed advocates of gun control suffering from hoplophobia, the irrational fear of guns.

[Steven Monticelli]

Ho and the entire 5th Circuit achieved national infamy after the Supreme Court erased almost half a century of abortion rights when it overturned the Roe v. Wade decision in the Dobbs v. Women's Health Organization case on June 24, 2022. A little more than a year after that landmark case on August 16, 2023, the Fifth Circuit upheld tightened access for women to mifepristone, the so called abortion pill, which accounts for more than half of all terminated pregnancies in the United States. Originally approved by the Food and Drug Administration in 2000, but only for prescription by hospitals and other medical facilities, the FDA expanded access to the medication in 2016 and gave doctors the right to directly prescribe mifepristone in response to the COVID 19 pandemic. Starting in 2021, women could receive it through the mail.

[Michael Phillips]

In 2024, an anti abortion organization, the alliance for Hippocratic Medicine, intentionally incorporated in 2022 in Amarillo, which placed it in the jurisdiction of the famously anti abortion federal District judge Matthew J. Kacmarek. Like Judge Ho, Kacmaric belonged to the first Liberty Institute. While being considered for the federal bench, he unsuccessfully tried to conceal his authorship of legal articles on gay rights he thought might jeopardize approval of his domination by the U.S. senate. Kacmaric has described gay and trans people as mentally disordered. The alliance for Hippocratic Medicine filed suit in Kacmarik's court seeking to overturn the FDA's approval of mifepristone, even though decades of research had demonstrated its safety and its effectiveness for treating Cushing's syndrome, a severe endocrine disorder.

[Steven Monticelli]

None of the doctors in the alliance had ever been involved in a medical case in which the use of mifepress Town had been considered. In his opinion, Kaczmieric showed his disdain for medical personnel providing women reproductive care, referring to them as, quote, abortionists, and called terminating pregnancy through medication starving the unborn human until death.

[Michael Phillips]

Courts require that parties have what judges call standing in order to file a lawsuit. That means, for instance, that one party has been in some way directly injured by the other party. President Joe Biden's Food and Drug Administration questioned how the doctors in the alliance for Hippocratic Medicine had in any way been directly harmed because women have access to abortion medications. Kacmarek found a fanciful way to grant the Alliance a right to sue. He claimed that treating the rare complications from mifepristone overwhelmed hospitals and placed, quote, enormous pressure and stress on the doctors during emergencies and complications.

[Steven Monticelli]

After granting the alliance standing, Kaczmarek issued a preliminary injunction suspending the FDA's approval of the drug. The decision would go into effect in 7 days in order to give the federal government a chance to file an appeal in his decision, Kaczmarek cited two studies that claimed the drug was harmful, but both had been retracted by a medical journal. In effect, Kacmeric had banned mifepristone nationwide. The United States Justice Department and Danko Laboratories, Mifepristone's manufacturer appealed, and the case went to the Fifth Circuit.

[Michael Phillips]

Judicial chaos surrounding the status of mifepristone reigned within hours as ABC7 in Los

[ABC7 Reporter]

Angeles reported a judicial bombshell involving abortion that could have an impact in all 50 states. A Texas federal judge revoking FDA approval of an abortion pill that's been used for more than 20 years. But another federal judge in Washington state then issuing a contradictory ruling, setting up another major battle over a woman's right to choose. Eyewitness News reporter Amy Powell joining us live in studio with more tonight.

[ABC7 Anchor]

Amy Michelle, this is causing a lot of concern. The reversal of Roe v. Wade by the Supreme Court was supposed to mean that abortion laws would be left up to individual states. But today a Texas federal judge issued a ruling that could end access to an abortion pill in all 50 states. Shortly after the Texas judge issued his decision, a judge in Washington state issued a ruling ordering the FDA to make no changes to the availability of mifepristone. Those conflicting orders mean this case is likely to end up in the Supreme Court.

[Steven Monticelli]

The mifepristone case went to the Fifth Circuit, where Judge Ho would write an opinion critics characterized as disturbing, baffling and bizarre. We'll talk about what happened in the mifepristone case and how Judge Hobby, an immigrant himself, has suggested that the children of migrants might not be eligible for birthright citizenship because the United States is, in his words, being invaded. But first we'll hear some hopefully not too bizarre messages from our sponsors.

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[Michael Phillips]

When the Fifth Circuit heard the appeal of Kazmark's ruling, ho didn't recuse himself from the case, even though his wife, Allison, a lawyer, has repeatedly appeared at events sponsored by the Alliance Defending Freedom, one of the litigants, and even received speaking fees from the organization. Ho brushed off this obvious conflict of

[Steven Monticelli]

interest on August 16, 2023. That court didn't completely uphold Kaczmarek's ruling, but it did impose numerous restrictions on the abortion pill called mifepristone, claiming that the FDA didn't fully consider its potential health risks. If the Supreme Court had upheld the Fifth Circuit's opinion, women would not have been allowed to receive a prescription through the mail after online medical appointments. They would have been able to receive the prescription only after a direct visit with a doctor and after three in person follow up appointments. The window in which women would have been allowed to take mifepristone would have been cut from 70 days of pregnancy to about 49.

[Michael Phillips]

Ho wanted to go much further than the Fifth Circuit's majority. He wanted to rescind the FDA's approval of mifepristone, which would have removed the drug from the market entirely. When judges agree with a majority on a panel, they can write a concurring opinion that gives them a chance to grandstand about a case. This is what Ho did in his concurrence when he bitterly complained that some believe that, quote, no one should ever question the fda.

[Steven Monticelli]

Ho then asked the public to pity the obstetricians he claimed suffer because of women's abortion rights. Ho drew on environmental case law, which acknowledges that a member of the public might believe that they've suffered a loss when, for instance, a park is destroyed because it is the location of a new mining operation, and then they can sue on that basis. Ho argued that doctors could suffer the same sort of damages when a pregnancy is medically ended. In his concurrence on mifepristone, Ho wrote

[Narrator/Voice Actor]

the following Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones, friends and family cheer at the sight of an unborn child, and doctors delight in working with their unborn patients and experience an aesthetic injury when they are aborted.

[Michael Phillips]

Leo Yu is an assistant professor of law at the University of Massachusetts at Dartmouth who specializes in civil rights law. Yu actually received law degrees in two countries, his native China and in the United States at Southern Methodist University in Dallas. While he lived in Texas, he lived under the jurisdiction of the Fifth Circuit and saw close hand the legal chaos the Fifth Circuit has created in the states of Texas, Louisiana and Mississippi. In 2021, he created the podcast Plead the Fifth. Professor Yu believes that when Ho writes extreme opinions such as in the methoprustone case, he's desperately trying to get one man's attention.

[Leo Yu]

He is auditioning all the time to the Supreme Court. And he went so far to create something that is quite honestly, just not even sensible. It's like, you know, people wanted to see cute little, you know, ultrasounds of babies, and that makes important, you know, them having the standing to challenge abortion pills because they wouldn't be able to see those cute little ultrasounds anymore. And it just. That part of rationale is quite. Just insane. I think that part. I don't know if that is something that he truly believed. And I would say that it's hard to imagine for anybody who truly believed that sort of analysis. So I put that part of analysis as another way from Justice Ho trying to audition for the Supreme Court. Like, hey, you think you found a conservative judge somewhere in D.C. look at me. I'm even more. And that's what it is.

[Steven Monticelli]

No one would accuse the United States Supreme Court under John Roberts of being moderate. But repeatedly, Roberts and the other justices have taken the fifth Circuit to task for going to extremes in its ruling. As Texas Tribune writer Eleanor Klibanoff put it, quote, if the 5th u. S. Circuit Court of appeals was a boxer, you'd bet on the other guy.

[Michael Phillips]

Writing a Supreme court's reaction of Fifth Circuit rulings and July 2024, Klibanoff noted that only three of the tribunal's decisions had been upheld while eight had been overturned, a one loss record that ranked amongst the worst among circuit courts in the country. In the mefa pristone case, Justice Brett Kavanaugh, hardly a Bolshevik, expressed dismay that the alliance for Hippocratic medicine had been granted standing.

[Steven Monticelli]

Kavanaugh wrote this. For a plaintiff to get in the federal courthouse door and obtain a judicial determination of what the governing law is, the plaintiff cannot be a mere bystander, but instead must have a personal stake in the dispute, end quote. If the standard set by Judge Ho and his peers in New Orleans remained in place, Kavanaugh warned, virtually every citizen would have standing to challenge virtually every government action that they do not like. Governing, he suggested, would become impossible.

[Michael Phillips]

It wasn't just on the issue of legal standing that the supreme Court found the fifth circuit court's judgment lacking. In the case of Rahimi versus The United States, the fifth circuit overturned a federal law that prohibited domestic abusers from buying firearms. The highest court, on June 21, 2024, overturned that decision by an 8 to 1 margin. Chief Justice John Roberts, who generally supports a very broad view of gun rights said that history, quote, confirms what common sense suggests. When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. Roberts also suggested that the fifth Circuit misunderstood the Supreme Court's view of the Second Amendment. Professor Yu told us that as conservative as Supreme Court majority might be outside of Clarence Thomas, they have found the 5th Circuit's rulings to be an embarrassment to conservative judicial philosophy.

[Leo Yu]

On that again, I think that was the eight to one opinion and Clarence Thomas was the only person who would agree with the fifth circus. So in general I think the Supreme Court is definitely conservative, but the Supreme Court appreciate a certain type of conservativeness that they can chew on and it's something that I think it can laced with some academic legitimacy and not just some sort of attention seeking paragraph that would make people feel some sort of feeling.

[Steven Monticelli]

On the last day of its 2024 session, the Supreme Court sent back to the 5th Circuit a case involving a 2021 Texas law that limited the ability of social media companies to suspend user accounts for extremist or violence inciting content. The law was inspired by the decision of what was then called Twitter and now X as well as other social media companies to de platform Donald Trump after the president encouraged his supporters to ransack the Capitol and stop the counting of Electoral College votes on January 6, 2021. The 5th Circuit previously upheld the law, claiming that it rejected, quote, the idea that corporations have a freewheeling First Amendment right to censor what people say.

[Michael Phillips]

Ho and his allies on the fifth Circuit, however, are fine with censoring free expression by members of the LGBTQ community. In March 2023, Walter Wendler, the president of West Texas A and M University, a public institution, canceled a drag show scheduled at Legacy Hall, a campus building. Organizers plan to use proceeds from the performance to raise money for the Trevor Project, a non profit group that seeks to prevent suicides in the LGBTQ community. In a statement canceling the show, Wendler explicitly said that his private religious beliefs guided his decision.

[Narrator/Voice Actor]

West Texas A and M University will not host a drag show on campus. I believe every human being is created in the image of God and therefore a person of dignity. Does a drag show preserve a single thread of human dignity? I think not as a performance exaggerating aspects of womanhood, sexuality, femininity, gender drag shows stereotyped women in cartoon like extremes for the amusement of others and discriminate against womanhood. Drag shows are derisive, divisive and demoralizing misogyny no matter what the stated intent such conduct runs counter to to the purpose of West Texas A and M. A person or group should not attempt to elevate itself or a cause by mocking another person or group. As a university president, I would not support blackface performances on our campus. Even if told the performance is a form of free speech or intended as humor, it is wrong.

[Steven Monticelli]

Spectrum wt, a pro LGBTQ student organization, filed a suit challenging the ban and requested an injunction blocking Wendler's action. But Judge Kaczmieric, the same jurist who initially blocked access to mifepristone, sided with West Texas A and M and issued a preliminary ruling preventing the drag show from taking place pending a trial. He said the performance supposed sexual content lacked free speech protections. The First Amendment does not prevent school officials from restricting vulgar and lewd conduct that would undermine the school's basic educational mission, particularly in settings where children are physically present, kaczmieric wrote in his September 22, 2023 opinion.

[Michael Phillips]

Spectrum WT appealed. The case went to the Fifth Circuit, where a three judge panel heard arguments on whether the fundraiser could proceed. On August 18, 2025, by a 2 to 1 vote, the panel reversed Kaczmarek's ruling. Judge Leslie Southwick, a George W. Bush appointee and a Bill Clinton appointed U.S. circuit Judge James Dennis, ruled that West Texas A and M had violated the gay student organization's expressive rights.

[Steven Monticelli]

Predictably, HO dissented. He simply echoed the arguments used by the university president, insisting that banning drag shows somehow advanced inclusivity.

[Narrator/Voice Actor]

University officials have determined that drag shows are sexist for the same reason that blackface performances are racist and Supreme Court precedent demands that we respect university officials when it comes to regulating student activities to ensure an inclusive educational environment for all.

[Steven Monticelli]

Spectrum WT's victory proved temporary. The panel's decision would not go into effect until the case was heard by the entire 5th Circuit Court. Meanwhile, a full trial unfolded in Kaczmierk's court in January. Not surprisingly, he ruled in favor of West Texas A and M. He said that the student group had not proven that the show was meant to convey a message that might be protected by the First Amendment and that by their nature, drag shows have sexualized content and the university had the right to regulate on campus grounds. The hearing before the full fifth Circuit was canceled, although Spectrum's legal team at the foundation for Individual Rights and Expression plans a different appeal. On February 25, a panel of the Fifth Circuit also upheld a new state ban on certain types of drag performances. Judge Kurt Engelhardt, appointed to the fifth Circuit by President Donald Trump expressed doubt that such shows were protected by the Constitution, especially said quote in the presence of minors.

[Michael Phillips]

While the 5th Circuit chipped away at free speech rights for the LGBTQ community, it advanced the rights of states to impose speech on public school teachers. The full court, by a 12 to 6 margin, lifted a district court's hold on a Louisiana state law requiring teachers to display poster sized copies of the Ten Commandments in public school classrooms. In spite of the First Amendment's prohibition on establishing a state religion or requiring religious practice and the efforts of the founders of the American republic, like Thomas Jefferson, to erect a wall of separation between church and state, James Ho celebrated the decision. The Louisiana law was not only constitutional, ho said, it, quote, affirms our nation's highest and most noble traditions. That claim left Professor Yu baffled.

[Leo Yu]

The question is, is he a historian when he said that the founding members of this country would like that? What historical record is he relying on? But isn't that even anti common knowledge that our founders would really resent that? To push our newly established republic to a situation where we push our citizens to believe in certain things religiously? That is exactly the reason why they left Europe.

[Steven Monticelli]

The fifth Circuit has presented a threat not only to the separation of church and state, free speech and LGBTQ rights, but it has also placed the rights of workers in its crosshairs. On August 19, the United States Fifth Circuit Court of Appeals upheld an injunction requested by attorneys for Elon Musk's SpaceX corporation, ruling that the structure of the National Labor Relations Board is unconstitutional and prohibiting it from acting against that company and two other corporations the NLRB charged with labor law violations. As has often happened, the 5th Circuit Court ruling conflicts with that of another circuit court, the Ninth Circuit, which upheld the power granted by the nlrb. This split almost certainly guarantees the case will end up in front of a Supreme Court that has been no friend of American workers.

[Michael Phillips]

On rare occasions, the Fifth Circuit might still acknowledge that society is tilted against the poor and people of color. A panel made up of 5th Circuit judges ruled that Lebean Conan could proceed with our lawsuit against the United States Post Office, a landlord who owns two properties in Euless, a suburb between Dallas and Fort Worth. Conan claimed that beginning in 2022, local postal employees abruptly stopped delivering mail, first to her and then to her tenants because, she said, they didn't like the idea that a black person owned the properties.

[Steven Monticelli]

The Post Office is mostly shielded from lawsuits by a legal doctrine called sovereign immunity, under which, as legal analyst Ellie Mistahl explains, quote, the government cannot be held liable for monetary damages arising out of actions taken by the government. What was unique about the United States Postal Service Bikanan case, however, was that in this circumstance the government was causing intentional damage to a private citizen. This time the Fifth Circuit ruled in the favor of a marginalized citizen and ruled the suit could go forward.

[Michael Phillips]

This rare progressive ruling was for naught, however. The Supreme Court overturned the Fifth Circuit once again. Clarence Thomas wrote the opinion for the 54 majority, essentially ruling as Ms. Stalls summarized the case, quote, that the Post Office is immune from liability even when its workers intentionally refuse to do their jobs. Mistahl suggested that this decision carries ominous implications for the upcoming election should the U.S. postal Service, for instance, refuse to deliver mail in ballots in spite of

[Steven Monticelli]

James Ho's status as an immigrant, his most alarming opinion might be regarding birthright citizenship. Ratified in 1868, just three years after the end of the Civil War, the 14th Amendment to the United States Constitution declares in its opening sentence that, quote, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.

[Michael Phillips]

For 128 years, the Supreme Court has rejected claims that citizenship can be denied to persons born or naturalized here based on their race or the immigration status of their parents. In the 1898 United States vs Wong Kim AR case, the Supreme Court upheld the citizenship of a man born in the United States to Chinese parents. The government tried to block Ark from returning to the United States after he visited China, based on the 1882 Chinese Exclusion act, which barred the Chinese from immigrating here. The court ruled 6 to 2 that Arc's birth in the United States established his American citizenship and his right to reside here.

[Steven Monticelli]

James Ho has not always attacked the concept of birthright citizenship, and in fact he used to defend it. Quote, birthright citizenship is a constitutional right, no less for the children of undocumented persons than for the descendants of passengers of the Mayflower, ho said in a 2007 opinion piece for the Des Moines Registered.

[Michael Phillips]

However, as the political wind shifted strongly against immigrants, particularly in the Trump era, Ho is also tilted in a dramatically different direction. In a 2024 interview, Ho claimed that the United States was being invaded by the foreign born and that denying citizenship to the children of the undocumented was necessary to defend national sovereignty.

[Narrator/Voice Actor]

Ho said, birthright citizenship obviously doesn't apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship, and I can't imagine what the legal argument for that would be. It's like the debate over unlawful combatants. After 9 11, everyone agrees that birthright citizenship doesn't apply to the children of lawful combatants, and it's hard to see anyone arguing that unlawful combatants should be treated more favorably than lawful combatants.

[Steven Monticelli]

The question of birthright citizenship might now be out of the hands of Ho and the rest of the Fifth Circuit. On December 5th, the Supreme Court agreed to hear a case on the constitutionality of Donald Trump's executive order that would deny citizenship to those born in the United States if their parents were in the country temporarily or lacked legal status. Dr. Yoo thinks that the Supreme Court is likely to accommodate those restrictions even as they reject James Ho's more extreme theories.

[Leo Yu]

I think the Supreme Court would roll back some portion of the 14th Amendment protection over people who are born in this country, but I don't think they are going to what Justice Ho is going after. That is the invasion theory.

[Michael Phillips]

That doesn't mean that James Ho may not one day bring his extreme views on immigration to the nation's highest court. The two most far right judges on the United States supreme court are James Ho's mentor, Clarence Thomas, who turns 78 on June 23, and Samuel Alito, who celebrates his 76th birthday on April 1. Court watchers are speculating that Alito might step down as early as October. His wife, Martha Ann, has expressed eager anticipation that the couple might soon be able to openly express their political views, as though the Alito's opinions have ever been a mystery. It's still an uphill battle, but the odds of Democrats retaking the Senate after the off year elections have improved significantly in recent weeks. Alito may want to retire while a Republican controlled Senate would still be able to rubber stamp Trump's choice for his successor.

[Steven Monticelli]

Alito also has a book coming out on October 6, the day after the Supreme Court starts its fall term. Continuing to serve on the court would interfere with any book promotion tour. Such an opening might lead to James Ho getting a promotion, but Professor Yu said that the Fifth Court judge shouldn't pack his bags just yet. Trump has largely outsourced the job of picking new federal judges or promoting them to the far right federal society, and Yu thinks that Ho might lack the polish that a powerful lobbying group would seek.

[Leo Yu]

I think, you know, it's not a secret that he's trying to get there, but I honestly think it's not going to be him. He doesn't really fit into the profile as a person who would get there I think the FedSoc, you know, the Federalist Society is basically the handler of that situation. They would be able to, you know, screen name and, you know, make short list to the White House. And so what kind of people they're looking for? I think that they're definitely looking for a conservative. If Alito is going away, right? They're looking for a conservative. But I don't think justice hall is in their favor because I think they are trying to find another person who is more sophisticated than justice hall. If I may say, may say that they wanted to find a person who is definitely conservative but being able to rewrap the message with academic legitimacy and to force a main form majority at the court to push through their agenda.

[Michael Phillips]

Recently, Trump said he was considering Ted Cruz of Texas for the next Supreme Court vacancy. If so, James Ho may be enjoying his lifetime post at the 5th Circuit for the foreseeable future. Ho celebrated his 53rd birthday on Feb. 27. That means his legal philosophy will shape gay and trans rights, the limits of free speech, who can buy firearms and where and how, how much autonomy women have over their bodies and what access they will enjoy to health care and where the boundaries will be drawn between church and state for years to come. Ho may not make it to the Supreme Court, but he could still be the loudest voice on the scariest court in America and shape the future of 40 million Americans in Texas, Louisiana and Mississippi for decades to come.

[Steven Monticelli]

We'd like to thank our friend Steve Mason for providing some of the voices today. This is Stephen Monticelli for It Could

[Michael Phillips]

Happen Here, and this is Michael Phillips. Until next time, thanks for listening.

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