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Judge James Ho Uses Fifth Circuit Decision To Audition For Supreme Court. Again. – Above the Law

Judge James Ho Jim Ho

(via YouTube)

Say what you want about Donald Trump-appointed judge James Ho, he’s a hustler. Sure, he already has a lifetime appointment to a federal appellate court — a job many would consider the culmination of a stellar legal career! — but he’s still out there angling for his next gig. That man wants to be on the Supreme Court, and there’s no position too far right that’ll stop him.

So while some might just focus on their, you know, actual job, Ho wants to make sure Trump knows just how far he’ll go to stick it to the libs. That’s why he used a dissent to criticize Texas (of all places) for being too soft on immigration; hijacked a concurrence to mark out a new low for reproductive freedom; went to war with woke law schools; came up with bizarre defenses for Clarence Thomas; invented new categories of damages for anti-Vaxxers; looked to the Bible to justify his jurisprudence; and so much more.

Ho’s latest audition reel for the High Court is his Second Amendment highlights. Based on oral arguments, the *actual* Supreme Court looks unlikely to uphold the Fifth Circuit’s decision in U.S. v. Rahimi. (In that case, the Fifth Circuit held that a violation of a court order — entered to resolve a domestic violence claim — banning the plaintiff from owning guns cannot be the basis of a criminal conviction because… Second Amendment.) In Rahimi, Judge Ho entered a wild (and sloppy) concurrence that reads more like Second Amendment fan fiction than a well-researched opinion. But just because the case is out of the Fifth Circuit and in the hands of the Supreme Court doesn’t mean Ho is done writing about it.

Ho doesn’t look to an academic article or judicial symposium to opine AGAIN on the Rahimi case. He commandeered another concurrence, this time in USA v. Kersee, to justify one more time, the Fifth Circuit’s decision in Rahimi.

As reported by Bloomberg Law, Ho utilized a hackneyed rhetorical trick writing that the Kersee case “reminds” him of Rahimi:

The judge said that courts don’t “presume that citizens are dangerous criminals,” and that Kersee should have had more opportunity to respond to the accusations against him. “I write separately to observe that the court grants relief, not because it is insensitive to domestic violence or the safety of Kersee’s girlfriend, but because it is sensitive to the constitutional rights of the accused,” Ho wrote.

The judge said there was a “lack of adequate procedural safeguards” in the statute raised in the Rahimi case, and “for the same reasons, the court is right to grant relief to Kersee as well.”

Ho also cited a string of Supreme Court cases in which it “repeatedly granted relief to dangerous criminals out of concern about the procedures used to determine their dangerousness.”

“In none of these cases did the Supreme Court decline to uphold constitutional safeguards just because the defendant was credibly accused of a dangerous crime. If government must turn ‘square corners’ when it comes to the removal of illegal aliens, surely it must do the same when it comes to the basic rights of our own citizens,” Ho wrote, citing a 2021 Supreme Court decision on the handling of immigration court proceedings.

Jeeeezzz. We get it. You’re insulted even a solid far-right majority on the Supreme Court won’t guarantee your favored policy result. The right might take an “L” on this one. But seriously, you can’t make everything about Rahimi — you just sound thirsty at this point.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon

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Amit Ghosh
Amit Ghosh


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