Bonus 152: Judge Ho, Due Process, and "Disrespect"

Some thoughts on Judge Ho's rather galling claim that the Supreme Court "disrespect[ed]" the district court and the President in Friday's ruling in the "A.A.R.P. II" Alien Enemies Act case.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter (and unscheduled issues) will remain free for as long as I’m able to do this, I put much of Thursday’s bonus content behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit.

Even though the Supreme Court is having another busy week on the emergency docket, I wanted to use today’s bonus issue to address the continuing fallout from last Friday’s ruling by the justices in “A.A.R.P. II”—the Alien Enemies Act case from the Northern District of Texas. As I explained in detail in Friday’s post, the justices (1) held that the Fifth Circuit erred in holding that it couldn’t hear an appeal from a denial of emergency relief by the district court; (2) extended their block on any removals under the AEA of anyone detained in the Northern District of Texas; and (3) remanded the case to the Fifth Circuit with instructions to “expeditiously” reach the merits.

On Tuesday, the Fifth Circuit panel that had originally held that it lacked jurisdiction discharged its duty—issuing a summary order that expedited the appeal to the “next available randomly designated regular oral argument panel.” That should’ve been the end of it. But Judge James Ho, who’s widely viewed as one of the most likely successors to Justice Clarence Thomas (and has been accused of rather actively … auditioning … for the job), had some thoughts he chose to commit to the pages of the Federal Reporter, 4th Series. In a truly striking eight-page opinion concurring in the panel’s order, Ho took serious exception with the Supreme Court majority in A.A.R.P. II—which he accused of showing “disrespect” to both the district judge and President Trump in favor of, in his words, “favored litigants like members of Tren de Aragua.” (Yes, he really wrote that.)

There’s a lot in (and not in) Ho’s opinion that warrants a response, and I’ll try to cover most of it below the fold. But what is truly striking—indeed, what is stunning—about Ho’s opinion, to say nothing of the right-wing commentary that has rallied behind (or, at least, repeated) it, is just how nihilistic a view it takes of due process, specifically, and the judicial role, more generally, when it comes to the removal of individuals from the United States.

The notion that courts show disrespect if they don’t blindly defer to the executive branch when it comes to the lawfulness of removals would’ve been problematic enough two months ago. But given what has already happened in cases like J.G.G., Abrego Garcia, J.O.P., and D.V.D., four different cases in which individuals have been removed unlawfully (including in violation of court orders) and the government has resisted any obligation to bring them back, Judge Ho’s hand-waving is utterly galling—and reflects a rather craven view of why we have federal courts in the first place. Indeed, if Judge Ho was moved to write to address the “disrespect” he (wrongly) claims the Supreme Court showed to Judge Hendrix by issuing preliminary relief to block unlawful removals in A.A.R.P., one might ask why he has absolutely nothing to say about the government’s behavior toward the four district judges in those other cases, too.

For those who are not paid subscribers, we’ll be back on Monday (if not sooner) with our regular coverage of the Court. For those who are, please read on.