Donald Trump’s most enduring legacy may be his successful efforts to pack the federal judiciary with far-right ideologues who use the pretext of law to impose their conservative policy preferences on the country. Trump’s judicial nominees have varying fixations: Some favor restricting the right to vote; others wish to strike down environmental protections; and many are eager to roll back LGBTQ rights. But the overarching obsession of Trump’s judges remains the same: a fervent desire to overturn Roe v. Wade and allow the government to ban abortion. And on Sunday, one of Trump’s most extreme nominees laid bare his deep-seated hostility toward abortion in a one-page opinion remarkable for both its candor and intemperance.
James Ho, the judge in question, sits on the 5th U.S. Circuit Court of Appeals. He has a staunchly conservative background, serving as Texas solicitor general during the state’s legal campaign against the Obama administration and volunteering for the anti-LGBTQ, anti-abortion First Liberty Institute. Ho has also asserted that the U.S. should “abolish all restrictions on campaign finance.” It was no surprise, then, that in his very first opinion in April, Ho attacked the city of Austin’s limits on candidate contributions. In a strikingly cynical rant, he suggested that wealthy people must buy off politicians in order to protect themselves from “regulators.”
But this polemic pales next to to Ho’s latest judicial harangue, which places Roe v. Wade squarely in his crosshairs. The case involves a Texas law that requires the cremation or burial of “fetal remains,” which Whole Woman’s Health challenged in court. In January, U.S. District Judge David Alan Ezra blocked the latest iteration of Texas’ fetal burial rule, ruling that it likely imposed an “undue burden” on a woman’s right to abortion access. Under current precedent, that is a sensible decision; after all, the requirement creates no benefit for women, while passing on substantial costs to patients and clinics.
Texas, however, argues that the fetal burial rule will not saddle clinics with extra costs, because the Texas Conference of Catholic Bishops has offered to bury fetal remains for free, or at reduced cost. To determine the veracity of this offer, Whole Woman’s Health served a subpoena on the conference requesting documents relating to fetal burial. The conference provided many documents but refused to turn over about 300 internal communications, alleging a First Amendment right to keep them secret. A magistrate judge rejected this First Amendment claim, so the conference appealed to Ezra. At noon on Sunday, June 17, Ezra rejected the appeal and gave the conference 24 hours to fully comply with the subpoena.
At that point, a three-judge panel for the 5th Circuit stepped in, granting an emergency motion to stay Ezra’s order. And in a rare Sunday opinion, the panel released its 2–1 decision essentially directing Ezra to rule in favor of the conference and quash the subpoena. Writing for the majority, Judge Edith Jones held that the subpoena was overbroad and posed a grave threat to the conference’s First Amendment rights to free exercise of religion and free association. (As Slate contributor Steve Vladeck has noted, Jones had to twist the law to hear the case in the first place, as disputes over privilege are not immediately appealable.) She also accused Whole Woman’s Health of “intimidation” for daring to demand the conference’s communications. And she accused Ezra of “religious insensitivity,” if not worse, for ruling against the conference “on a Sunday morning” when its members “were almost surely in church.”
Ho added a concurrence to make Jones’ insinuations as clear as possible, and to levy an attack on abortion. “It is hard to imagine,” he began, “a better example of how far we have strayed from the text and original understanding of the Constitution than this case.” Ho continued:
The First Amendment expressly guarantees the free exercise of religion—including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains. By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains.
Having gratuitously declared his belief that the Texas law is constitutional, and questioned the validity of Roe, Ho took direct aim at Ezra. Why, he wondered, did Ezra “impose a 24-hour mandate on the Bishops on a Sunday (Father’s Day, no less), if not in an effort to either evade appellate review—or tax the Bishops and their counsel for seeking review”? The subpoena, he insisted, seemed designed to “retaliate against people of faith for not only believing in the sanctity of life—but also for wanting to do something about it.”
This passage is truly astonishing. Ho, a newly appointed circuit court judge, has effectively maligned Ezra, a senior district court judge, as an anti-Catholic bigot. He did so because Ezra had the gall to treat the conference like any other party before the court and issue an order on a weekend. Ho’s evidence of religious animosity is nonexistent, his breach of judicial protocol breathtaking. And his potshot at Ezra is all the more egregious in light of his lengthy and impeccable service: The judge, a Reagan appointee, is based in Hawaii, but serving in Texas to ease a judicial shortage in the state at the request of Chief Justice John Roberts.
This scurrilous attack on Ezra, a man respected by the chief justice of the United States, is telling. To Ho, apparently, any judge who does not bend over backward to accommodate religion is a bigot. The Texas Conference of Catholic Bishops deserves special rights and privileges, and the persistent benefit of the doubt; Texas’ abortion clinics and patients deserve nothing. Ho sees no reason to conceal his disdain for Roe and its defenders. And in a few short paragraphs, he captured the dominant judicial philosophy of Trump’s judges: Christians always win; abortion providers always lose.