Advisory Opinions - Live From The Dispatch Summit: Judge James Ho

Episode Date: November 14, 2024

Sarah sat down with Judge James C. Ho at The Dispatch Summit on November 12 for an in-depth conversation about key legal issues, including the legitimacy of the courts, judicial ethics, and the principles of birthright citizenship. The Agenda: —Cancel culture —Originalism —Elephants in Mouseholes —Court legitimacy —Judicial filibusters —Ethics of gifts —Birthright citizenship —First Amendment —Good judicial qualities Show Notes: —Judge Ho’s letter on cancel culture —Essay No. 1 (1787) —Professor Fitzpatrick's reflection on reversals —Justice Alito’s flags —Defining "American" Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Red 1. We're coming at you. Is the movie event of the holiday season. Santa Claus has been kidnapped? You're gonna help us find him. You can't trust this guy. He's on the list. He's a naughty lister.

Naughty lister? Dwayne Johnson. We got snowmen! Chris Evans. I might just go back to the car. Let's save Christmas. I'm not gonna say that. Say it.

All right. Let's save Christmas. There it is. Only in theaters Friday. Amazon's holiday deals are here so you can celebrate the season early. With low prices on decor, electronics, and beauty. Perfect for stocking stuffers. And my stocking's looking good.

Shop holiday deals early on Amazon now. Ready? I was born ready. Hurry, hurry. We don't want to miss a moment. Bar allotted time. I'm Sarah Isger, I'm a senior editor at The Dispatch. And oh wow. On Bill Marsh, that gets boozed.

So okay, that's nice., so okay. That's nice. No, they're all very nice there. And I have the pleasure of interviewing my wonderful and long-time friend Judge Ho. So by way of introduction, Judge Ho has come from some of our finer institutions, Stanford University and the University of Chicago. He served, oh, got some claps for that too.

He served as chief counsel for Senator Cornyn, as well as Texas Solicitor General as husband of the pod did, though he wasn't the sexiest Solicitor General. That's, you know, obviously mine, but And then you went on to become a Fifth-Circuit judge and we'll talk a little bit about just all of those career moves But just a note, I mean I my first campaign was Senator Cornyn's first Senate campaign in 2002. And so I knew about you long before you knew about me. And Jim Ho was the person that every young staffer thought was the smartest human they've ever met.

When you went to go clerk for Justice Thomas, there were just hushed tones as he would walk through the hall for the youngins in my world. And I remember when I got to actually like meet him and become friends with you. And I was just sort of like giddy inside. And you've been such a wonderful intellectual mentor and personal mentor.

You have this incredible, you know, we call them power couples and that's almost derogatory, but your wife Allison is just a huge inspiration to me. You'll have twins, which is really cool and they're neat humans. And when I get to see them, that's fun too. So there's so much for us to talk about today. But I have invited you on advisory opinions pretty much since we started advisory opinions five years ago and you've said no at least once a year. And so for this I was like I told Steve I was like you know what I just, I'll ask him and he'll say no, and then we'll move on.

And you said yes, and it was very confusing. Why did you say yes? I always like to keep you on your toes. Yeah. You know, this conversation reminds me of, it was maybe dating myself in some rooms, the movie Wall Street, when Bud Fox meets Gordon Gekko for the first time.

What was the line? This is the kid, calls me 59 days in a row. There ought to be a picture of you next to the word persistence in the dictionary. You're Bud Fox, I guess. In retrospect, I regret telling that story because I'm not trying to be Vort & Gecko. Thank you for mentioning my wife, by the way, during my confirmation hearing. Senator Cruz, in his introduction, which is, you know,

supposed to be nice, he's supporting my nomination, he actually says that I'm only the second best lawyer in my household. Which is true, but you know, I wasn't expecting, you know, I know the confirmation process is supposed to be very challenging and difficult. I didn't expect that from a supporter. Also, it's funny is again, like most of the time when people say like little things like that, I actually don't like it because I think it's like almost vaguely insulting to the wife because it's like everyone knows it's not true. But like in this case, it's true Ted absolutely means that She has she as a partner at Gibson Dunn

She does these incredible pro bono religious liberty cases is just one example of all the work She does some criminal justice work as well. I mean truly She's she's really something. So sorry the rest of this hour will be spent gushing about Alison. Thank you for coming. But the reason I, in all seriousness, you guys have featured obviously a lot of judges and the reason I decided I want to come on is you featured some judges who have talked negatively about something that I feel very passionate about. And so I thought, okay, you know what, if judges are going to be speaking out about this, I would very passionate about. And so I thought, okay, you know what? If judges are gonna be speaking out about this, I would like a chance to respond.

I'm glad advisory opinions has become a point for judges to talk shit about each other. So I would like- Your words, not mine. I wanna read, so back in September of 2022, you gave a speech in Kentucky about cancel culture that then was turned into a law review article for the University of Texas law review. And I wanted to read a piece of that and then read Judge the Par's response as well. So this is from you.

As citizens, it's incumbent upon each of us to speak out against cancel culture. We can stand up for free speech, for open and rigorous debate, and for diversity and tolerance of opposing viewpoints. So let's start there. Moreover, as citizens, we can also stop censoring ourselves, because that's how cancel culture wins. If we have views we'd otherwise express, we should try not to be afraid to express them. Silence is contagious, but so is courage. Is there anything else we can do? Because we're

not just citizens, we're also customers. Customers can boycott entities that practice cancel culture, but all too often that seems utterly futile. A big company won't care if a bunch of my neighbors and I boycott or not even a drop in the bucket. So boycotting is often just tantamount to deplatforming yourself. But I wonder how a law school would feel if my fellow federal judges and I stopped being its customers.

Instead of millions of customers, there are only 179 authorized federal circuit judgeships and 677 authorized federal district judgeships. By the way, I love that you put authorized next to each one as if there's maybe some shadow ones out there pretending to be circuit judges. I don't know what they're not authorized So here's what i'm going to do starting today I will no longer hire law clerks from Yale law school

And this started what has been known as the boycott in legal circles. You can just say the boycott and everyone knows Um, there are other judges who have joined this judge Judge Thapar from the Sixth Circuit was asked about it just this month and this was his take. Make no mistake, money talks. Only when the taxpayers and donors alike demand it will law schools actually start to change. When law schools do change, the hefty price paid for a law degree might actually be worth it

because lawyers will leave law school equipped to practice in today's courts. I worry that there's still kids like myself that went to law school. I didn't even know what a clerkship was. I'm still the only person in my extended family that went to law school. I had no guidance and I just showed up. I wasn't even a conservative then. I was a nothing. I was a normal college kid that enjoyed college, played sports, had fun, probably drank a little too much, and went to law school. And I got there and I thought I was going to be interpreting text, interpreting law.

That's just kind of logically, if you have no idea, you think that's what you're going to do and then you get there. And it's craziness. And a lot of those kids, I think, either quietly or vocally move to the right during law school. And so I struggle with excluding a whole group of essentially students that believe in originalism or want to do originalism to punish their law school. And so I struggle with excluding a whole group of essentially students that believe in originalism or want to do originalism to punish their law school. I'm not saying it might not be effective. I'm not saying that the judges Ho and Branch haven't made great strides. I'm saying it's just not the tact I and others have taken because we want to encourage the schools to change. We're

very vocal about it. At the same time, we don't want to punish the various students that believe in originalism as a result. So y'all agree on a lot of this. This is just a tactics question, really. Yeah, I think that's right. So my response to Judge Thapar is, first of all, and in all sincerity, I welcome the fact that he is wanting to engage in this discussion. You mentioned that I gave the speech about Yale in 2022, two years ago. A lot has happened since the fact that he is wanting to engage in this discussion. You mentioned that I gave the speech about Yale in 2022, two years ago, a lot has happened since then, that have, you know, there were already concerns about the intolerance we're seeing

in some of these elite institutions. After October 7th, there's obviously been a greater public concern about this. And so it's great that he's engaging because at this point, I think there is a growing consensus that this is a topic not just of concern to a lot of people, it's worthy of concern amongst judges. It makes sense for judges to talk about it and to want to do something about it. We're now basically negotiating over terms. Okay. So what Judge Stapar has said is he wants to publicly advocate for legislators, taxpayers, donors.

They should be the ones who should essentially defund institutions where these intolerance problems are taking place. I have no problem with citizens who want to, who are disturbed by what this is doing to our country and getting involved. If they want to do that, that's great. And obviously we're seeing a lot of that over this past year. My point though is I don't want to just pass the buck. I do think that judges have a role to play here. I don't see why it has to be one or the other. Why can't it be both solutions? The main argument that I'm hearing from some of the judges on your podcast and Judge DeParle

as his most recent remarks is that we shouldn't do this because it will hurt students. And with respect, I don't understand that argument. And let me explain why. I would regard that as what I'll call a losing attitude when we should have a winning attitude. Okay, let me explain why I mean by that. Every boycott throughout history, just the very concept, By definition, it's people refraining from engaging in transactions they would otherwise want to because of some larger goal that they have in mind.

So if you just assume 100% chance it's not going to work, it's not going to change anything, then all you do is calculate the losses, the consequences. Under that theory, nobody would ever boycott. You would never, the word wouldn't exist. Nobody would ever do this. I think you should have a winning attitude. What that means is actually do what rational decision makers do.

Figure out the benefits of success, the costs of failure, and then measure that against the probability of a certain tactic succeeding or failing. So let me just ask a very simple question. I appreciate you quoting my earlier speech when I talked about the customers of a big company, so I don't need to go through that again. Just a very simple question. If a dozen, two dozen, Federal Circuit judges agreed that, you know what, this school is doing more toxic, adding more toxicity to our future leading class, the class of leaders in the future. If we decide we're just not going to, we're going to hire from other schools from now on, what would the law school do? Would they say, no sweat, we'll just send our kids to law firms

and other employers, no big deal? Or would they change? Honestly, what do you think? You've clerked, you know how this world works. I don't know. Would the chair... I would submit... It depends on the school. That's the first time I've heard that. Every time I've asked that question, everybody's agreed. No, these schools care deeply about this. Ten years ago, I would have absolutely agreed. Now I wonder if we've gotten to a point, I

don't know, whether they would shoot themselves in the foot just to be like, well, you shouldn't be around those bad people anyway. It's part of what drives cancel culture, the idea that they're not just wrong, they're evil, and that's why you shouldn't listen to them. What I would say, I see what you're saying. In other words, things have gotten so bad that they enjoy the reputation of being the leading cancelers.

Forwardsworth, I think that is a hypothetical possibility. They enjoy the reputation of being the leading counselors. Forward to Swirt, I think that is a hypothetical possibility. It is not the reality. That is not what these schools are communicating to me privately or in public. What they're saying is what happened is terrible. We regret all of this. Please keep hiring our students.

You don't need to do this, et cetera, et cetera. So they're not acting as if, you know, at no big deal, they don't care. Will you give us an update on the boycott, like where it stands right now, what schools are included in your boycott, how effective do you think it's been based on what you just said?

Sure, well, so I'll tell you, in terms of the effectiveness, a quick story. Justice William Brennan, for a period of time, hired basically exclusively from Harvard. And then for a three-year period refused to hire anybody from Harvard. I would like to submit that his reasons were not as worthy as they could have been. He basically, as I understand the history, he didn't like how certain faculty members described the Supreme Court. And also, he felt kind of dissed because they were treating other justices better than they were treating him.

After three years, Harvard corrected the problem. This, by the way, I'm not making this up. This is from books and law review articles by his former clerks who have described what happened. After three years, Harvard changed. It did various things to invite him to campus and to do things that he deemed better behavior from his perspective. And he went back to hiring from Harvard, although much less frequently than he used to, much more occasionally. That was a three year process. I don't know what the future will hold. My hope is that they will change because... Is Yale the only school you're not hiring from right now?

Yale, a year later, there was an incident at Stanford that was, let's say, universally described as a bad development. And then, of course, Columbia, that became essentially ground zero for all the post October 7th intolerance. So those are the three schools we've talked about. And so we'll see. I mean, compared to the three year boycott that Justice Brennan did, this is still in its infancy. I want to back up a little and talk about some of the intellectual thoughts behind pluralism and what leads to cancel culture, because also in that Law Review article, I mean, I'm a real sucker for the Federalist versus Anti-Federalist debate, and all of you are a captive audience,

so suck it. You are going to listen to all of this. You want to nerd out in front of all these fine people? I do. I mean, this is a live episode of Advisory Opinions in its own way and what would it be without a little quote from Brutus. So we focus so much when we talk about the Federalist versus Anti-Federalist on you know the role of the federal government or Brutus's concerns about the judiciary for instance in our little nerd world but you you had this really, for me, quite revolutionary quote from Brutus, the anti-federalist. In a republic, this is the concern of the anti-federalists

about having a single country instead of sort of those separate states that would pool together in sort of a NATO-ish way that had worked so well under the Articles of Confederation. Side-eye to Brutus. In a republic, the manners, sentiments, and interests of the people should be similar. If this be not the case, there will be a constant clashing of opinions,

and the representatives of one part will be continually striving against those of the other. The laws and customs of the several states are, in many respects, very diverse and in some opposite. So a legislature formed of representatives from the respective parts would not only be too numerous to act with any care decision, but would be composed of such heterogeneous and discordant principles and would constantly be contending with each other.

Was that written in 1789 or today? Like, have basically we proved the anti-federalist right? And that's your paraphrasing my concern, right? It's the federalists won that debate and thank goodness that they did because the constitution has led to the most successful nation in human history. My fear is 200 plus years later,

we might be on the brink of proving the anti-federalist right. So let me explain that. I wasn't born in this country. I was a naturalized citizen. I thank God every day for this amazing project called America. What I find amazing about it is we take 300 plus, whatever the number is, 350 million Americans who are passionate, patriotic, fierce. We disagree on every issue you can imagine under the sun. And yet we're somehow able to make it work. We come together and work together. How is that? And what I find fascinating about the debates is they predicted all this. The Federalists believed quite understandably and rightly that the problem with the articles is that we weren't unified. We need to be unified with a national limited but important national government because of all the benefits of scale, right? All the obvious to put together,

stronger economy, stronger diplomacy, national security, international relations, a bigger pool of talent from which to draw captains of industry and governance, all the obvious benefits from scale. And the anti-federalists responded that this was crazy. This was an insane idea, that if you look at the history of republics, no republic anywhere near this size and diversity heterogeneity had ever proven successful

because all you end up doing is fighting with one another. And the genus of the Constitution, I think was primarily freedom of speech and federalism. But I also think higher education and education generally has a huge role to play. What did Reagan say about freedom not being inherited in the bloodstream? It's gotta be passed down. We have to educate the next generation of citizens on how to treat each other. All of us as parents,

I think we certainly teach our children to respect people of different views. Some people like vanilla, some people like chocolate, right? We'd talk about Martin Luther King Jr. We'd talk about respecting others, even if they look different, even if they think different, even if they have different faiths. I'm worried that we're not only not teaching that, we're actually encouraging the opposite. And not just generally, but in our elite, most elite, at least the institutions that purport to be, represent themselves to be training the next generation of leaders. I think what we're training is very, very different. And make no mistake,

I have a lot of things to do. If this were just a campus experience, you graduate and this is all in the past, I wouldn't have wasted my time doing this. My fear is that what happens on campus does not stay on campus. It goes into the world and there's just extensive evidence that this is changing certainly the legal industry. About a month before, I'm sorry to filibuster, but about a month before I gave the speech, David Boyce gave an interview with some legal trade press publication and he talked about how law firm managers are now afraid of the associates. You hear stories about academics, law professors who used to love doing their jobs. Now they're just trying to survive because they're afraid of saying one thing that will cause their

entire lives to be destroyed. That's not what this country is about. And it's not how we're going to succeed in the future. And so, you know, if judges aren't interested in this issue, that's fine. Like I said, I'm glad that Judge Tappar is engaging and that we're now agreed at least that there is a problem. I just think that we have more of a role to play than others do. This episode is brought to you by Dyson On Track. Dyson On Track headphones offer best-in-class noise cancellation and an enhanced sound range, making them perfect for enjoying music and podcasts.

Get up to 55 hours of listening with active noise canceling enabled, soft microfiber cushions engineered for comfort, and a range of colors and finishes. Dyson On Track, headphones remastered. Buy from DysonCanada.ca. With ANC on, performance may vary based on environmental conditions and usage, accessories sold separately. And we'll take a quick break to hear from our sponsor today, Burford Capital. Support for advisory opinions comes from Burford Capital, the leading finance firm focused on law. Visit burfordcapital.com slash a-o to learn why the world's best companies and law firms use legal finance from Burford. Here's a reason. Businesses are spending more on litigation. Legal finance shifts the cost of litigation to a third party and gives GCs

and CFOs a tool to accelerate expected recoveries from those litigations. And it's not debt, it's non-recourse capital. Legal finance from Burford, it's corporate finance for the legal department. Burford is publicly traded on the New York Stock Exchange and top ranked in its field. To learn more about how legal finance. Burford is publicly traded on the New York Stock Exchange and top ranked in its field. To learn more about how legal finance from Burford can help your business, visit burfordcapital.com slash AO. Hey, this is Mary. This is Grayson.

And we're the editors of the Morning Dispatch newsletter. Every weekday morning, we give you the news you need with your morning coffee, right to your inbox. Between quick hits and in-depth explainers, we cover a little bit of everything. The economy, politics, foreign affairs, anything as long as it's worth your time. Plenty of outlets are just trying to bait you with outrageous headlines to get your clicks. We don't do that. We tackle the stories that actually matter, cut out the DC jargon to give you the context you need to start your day. TMD is an ongoing conversation with readers

as we walk you through the news that will still be relevant in six weeks and six months. So join the conversation and subscribe to the morning dispatch at thedispatch.com slash join. For a limited time, you can use the code worthyourtime10 for 10% off your annual subscription. If you're already a member, go to thedispatch.com,

click newsletters, and make sure you're subscribed to The Morning Dispatch. It's worth your time. All right. I want to explain your job to everyone because you are not on the Supreme Court yet. I'm not. Let's just leave it at not. And I think a lot of it's a weird job, right?

Your middle management. There's the trial courts below you and the Supreme Court above you, and like, what would you say you do here? And... And... Are you trying to disintermediate us? No, I only try to get the bankruptcy courts

declared unconstitutional, as my father is a unconstitutional Article One bankruptcy judge, who you work with on the circuit in theory. And you have yet to strike him down, I mean, as unconstitutional, so get on that. But I thought you could explain a little bit about the difference between applying Supreme Court

precedent versus anticipating Supreme Court precedent, because I think it can be a subtle difference sometimes, and especially in this past year where the Fifth Circuit had more decisions overturned than any other circuit. You know, why are you all so wrong? So a few things to say about this. So, a few things to say about this. I think it's very easy to focus on numbers and ignore the fact that you have to look at the specific case, whether it's a Supreme Court overturning a court of appeals or a

court of appeals overturning a district judge. So we get it, you know, what's interesting, you mentioned it was always, what is this job in the middle? We sort of play both roles. We reverse others, other judges, and we get reversed. Here's the thing, and I found this in both directions. Yes, there are times when a judge, if it's a district judge or a panel of judges on a court of appeals, there are times when judge can get reversed because they messed up. They misconstrued the law.

And there are other judges on a higher court telling them that. My point though would be, there are lots of other reasons why there are reversals. Particularly when it comes to the Supreme Court and the Court of Appeals, there are times when the Supreme Court isn't saying the Court of Appeals is wrong.

It's saying you dutifully followed what we have told you in the past. We, the Supreme Court, have told you in the past. It's the Supreme Court that's changing its mind. I was on the panel in Dobbs. I was reversed in Dobbs. And let me just explain why I'm mentioning that. The Supreme Court has made very clear, it does not matter how sure you are about what we're going to do with our own precedent. Lower courts don't you dare predict. You're bound by our precedents and you shall follow them until we, the Supreme Court, reverse them.

So there's no anticipating someone writes a little concurrence or a... We would be scolded. We would be scolded. The Supreme Court has scolded lower courts for anticipating, and then they went ahead and did it. So in other words, lower court got it right, but they said, that's not your job. And so I take very seriously my role within the judicial hierarchy, which is do what the Supreme Court has told me.

That's what I've done. That's the only way I've tried to do in every case, whether it's Dobbs or other cases. There are other situations where the Supreme Court reverses because the parties have changed their position. That's actually happened in one of the cases that you're thinking of. There are still other cases where the Supreme Court is reversing the Fifth Circuit, but they're reversing the Fifth Circuit on a precedent that the panel was bound by. That happens as well. But like I said, there are also situations where the lower court just got it wrong. They just misconstrued the text. I don't want to suggest that that never happens.

My point is, it's not a numbers game. You have to look at the case, look at the arguments, look at what's going on and figure out which bucket to put that particular reversal in. The last thing is, I will put in a plug for Professor Fitzpatrick at Vanderbilt who apparently felt the need to respond to some of these discussions and said if you look at on a per capita basis, the Fifth Circuit is a very busy circuit. We have a lot of cases. And if you based on that, his statistical analysis is that it's actually quite, we're in the median when it comes to that. I haven't checked his numbers, so I'm not representing them as accurate or not. I do not accept that Texas is in the median when it comes to that. I haven't checked his numbers, so I'm not representing them as accurate or not.

I do not accept that Texas is ever the median anything. We are the top in everything. There is such a thing as Texas exceptionalism. You know, the Michelin list just came out for the first time with Texas today. So now we have Michelin starred restaurants. I mean, there is nothing that isn't better in Texas. You thought we were done with the Federalists

and Anti-Federalists, but you were wrong. I wanna talk originalism because you are an originalist judge and you have described the powers of the judiciary back to some of those Federalist papers, neither the sword nor the purse judgment only. of those Federalist papers, you know, neither the sword nor the purse judgment only. And that originalism is a mirror, you said. And I have always explained sort of the courts as this like two-axis system, right? On the bottom, you've got originalism to living constitutionalism,

sort of that judicial philosophy that we may think of as conservative or liberal or something else. But then there's this Y axis that's institutionalist, consequentialist. Is this going to be easy for lower courts to follow? Does this encourage respect for the rule of law and the judiciary, things like that, that are a little harder to put your finger on? But when I've asked you about it, you've really pushed me to think more, well, think hard about that distinction. Because for you, consequentialism really isn't a second axis or to the extent it is, you're a low institutionalist, I would say. But you do

think about consequences in originalism. I think you can and then I'll just explain my take. To me, I am an originalist. That's what I've long believed. To me, I don't think of that as sort of a weird or controversial. To me, it's just, I went to law school to be a lawyer. Originalism is just being a good lawyer. Two parties enter into a contract and then later on they have a dispute. Well, how do you expect them, how do you expect an arbiter, a neutral arbiter to resolve the dispute? I assume you expect the arbiter to do what the contract says. That's all an originalist really does, whether it's a contract or a constitution. So as a lower court originalist,

if you will, because I am on an intermediate court, I see my job is very simple, or at least simply stated. I try to follow the text and original understanding of whatever legal provisions before me, whether it's a contract provision or anything else. And I try to do that to the maximum extent permitted by a faithful reading of governing precedent, typically a Supreme Court precedent. That's the job. So to my mind, I don't do it based on my sense of whether this is the right rule or not, or whether this is the right result or not. I take the rules that have been given to me and I apply them based on the record. Now, in terms of your point about consequentialism, I will do this, and I think this is fair game

and just sort of basic common sense. If my understanding of a statute leads to a result that seems weird, or that my colleagues say is weird, I will double check. I will redo my analysis and say, am I missing something? Maybe the words are not quite what I thought. And then I will either change my mind or I'll stick to it. But to me, it has to be an originalist, consistent with governing precedent.

It has to be an originalist analysis because it's not my job to write the rules. And so, for example, there was a case on my court where my colleagues were very upset that this was terrible for a particular industry. I double checked. They wrote a very fiery assent that talked about how this was awful for the industry. It was very consequentialist in that sense. My view was I don't think it's absurd. And in any event, I think it's what the text requires.

That's interesting. As I'm hearing you explain that, and now we're getting into the deep nerdery here, it sort of sounds- I think we're already there. We've already lost the audience. And let's dive deeper. We're now going to be in the dark parts

where the fish have those little dangly things. A face only a mother could love. Okay, so this reminds me a little bit of the debate going on at the Supreme Court right now over major questions doctrine where Justice Barrett at least is describing some version of major questions doctrine, perhaps the Gorsuch version, as a strong canon, a thumb on the scale where the major questions doctrine, this idea that Congress the major questions doctrine, this idea that Congress did not give an agency this power, that we basically shouldn't, you know, if there's a tie, then Congress didn't give the power.

Whereas she has said for her, the major questions doctrine is really more of a textualist, originalist analysis question. It's how you help inform whether you think Congress, would it be weird if Congress just handed over this huge amount of power in a random subsidiary clause? And that to her is a way of reading the text, the major questions doctrine. And so I wonder if you wanted to comment

not necessarily on major questions doctrine, but sort of that divide between thumb on the scale versus it's another way to inform one's analysis. So what I will say is I miss Justice Scalia. And the reason I say that is I credit him with this idea and I don't think he ever called it the major questions doctrine or at least he didn't call that when he first started it. He called it elephants and households but that was too long. Exactly. No, I actually have, I invoked it in an opinion I think I referred to as the elephants canon. And the notion is, I forget the exact wording, but the words in effect

that Justice Scalia wrote in his opinion were, Congress does not hide or bury, I forget which verb, does not hide elephants in mouse holes. What that means is if there is some really dramatic society changing rule that one of the litigants is purporting to impute to Congress, you better bring it, right? The words better be there. Now, if it's a small rule, like, look, you know, only a few parties care about this. It's only very distinct situations where this would trigger. bring it, right? The words better be there. If it's a small rule, like, look, you know,

only a few parties care about this, it's only very distinct situations where this would trigger, then fine, just tell me what the rule is and we'll debate it. But if it's like an earth shattering and so... Vaccine mandates, student loans, these have all been areas. I first invoked Elephant's Canon in an opinion, this was before Boss Doc, but the question was presented to my court, does Title VII apply to gender identity and sexual orientation? And that's when I cited the Elephants' Canada to say, no, I mean, Title VII was written a particular way, for a variety of reasons, including the fact that the words sexual orientation

and gender identity are not in the statute, that is a major change. It's a major change that I get that a lot of people would welcome. But was the Civil Rights Act a big deal in 1964? Courts could not on their own tell private industry you're not allowed to discriminate. A lot of us would love for that. Thank goodness we have the 1964 Act.

But it took Congress to do that. That was a big deal. Extending that act to the way Vostok does, that's also a big deal. It's monumental. And so I invoked the Elephants' Canon to say, look, you can't just say, if you really squint really, really hard, you can try to find it in there. No, no, no. Congress, if they had meant it, they would have said said it and that essentially is what the elephant's canon or the major questions doctrine if you want to be boring uh that's what that doctrine stands for in my view. All right like Taylor Swift we're going to move on to our court legitimacy era. Um it's her album coming out soon don't worry.

It's her album coming out soon, don't worry. There are any number of questions around the court's legitimacy, efforts to undermine its legitimacy, so we're just going to start ticking through some of these. I want to start with the things that maybe people don't think of necessarily as legitimacy questions, which is forum shopping, this idea that people choose to file their lawsuit in a particular place to get a particular judge because they think they'll get an outcome that they like. I think that does undermine the court's legitimacy. And I'm curious, what if anything we're supposed to do about that sense that, for instance,

if you host a podcast and you're telling your audience like, and this one got filed in the Northern District of California, or, and this one got filed in, you know, the, in a single judge district in Texas. So believe it or not, this just proves my legal nerdery. Forum shopping is something that I've studied for 20 years, back there during when I worked for Senator Cornyn If you don't mind, I'll just tell that story real quick. Senator Cornyn had previously been General Cornyn and as Attorney General Wait, did you say General Cornyn? Now we're gonna have to go on a whole linguistics thing. Did you call him General? No, you didn't. No, I called him Senator. No, he was Senator. But like would you call someone General instead of Attorney General? Sure, that's the senator. No, he was senator. But like, would you call someone general instead of attorney general?

Sure, that's the convention. No, no. I'm familiar with- When you were solicitor general- This is really nerdy. When you were solicitor general, did you allow your staff to call you general ho? No, absolutely not.

They called me Jim. No, but when he was attorney general, this was during the Enron bankruptcy. As I'm sure many of you remember, this was an extraordinarily traumatic event for a lot of people in Houston, the employees, pensioners, small businesses. They used to host our main fireworks show and then we didn't get that anymore and the whole city used to come out for it and I was really sad. As you might imagine, Texas Attorney General John Cornyn wanted the Enron bankruptcy litigated

in Texas. It was not. I forget if it was New York or Delaware, but it's long been understood that all the high dollar bankruptcies at the time were filed in New York and Delaware. And for reasons that academics have described as literally, it's not my words, their word, as corrupt. All right. So let me explain, there's a difference between forum shopping and forum selling. The bankruptcy at least gives you a taste for where I'm going. Forum shopping is, if I can be candid, is

what clients expect their lawyers to do. We can talk about it, we can disparage it if we want, but just let's be very clear, attorneys have the responsibility and duty to zealously advocate for their clients, and that includes strategic decisions. Courts, judges have observed this in opinions. This is not weird. Courts have acknowledged, of course, we expect lawyers to do this. Right around when the forum shopping controversy started to take hold in our country, there was a headline, I believe in Bloomberg, DOJ files antitrust suit against Apple in the friendly Third Circuit. I'm sure their lawyers had researched extensively, DOJ has a lot of great lawyers and they figured out the most sort of aggressive precedents apparently were

in the Third Circuit. I don't know that to be true, but that's what happened. Did General Garland fire those attorneys? No, of course not. All right, that's what they expect. A lot of the border security debates between the federal government and Texas or between Texas and other litigants, they're typically filed on the border in Del Rio. DOJ filed when it chose to file one, they filed in Austin, which as you may know is not on the border. The attorney general of California is in Sacramento, but the big cases, the headline grabbing cases are often filed in the San Francisco division where statistically they have a hundred percent chance of getting a judge of the same

party as the AG. Same thing in Maryland, Maryland, DAG, Baltimore. Yet these cases are filed, as I understand it, in the Greenbelt division, 100% chance. We can have a debate about forum shopping. I just want to point out that it is something that lawyers are essentially hired to do. To me, the central evil is forum selling. We expect lawyers to favor their clients. We expect

judges to favor nobody. And so what would concern me and what I learned from helping Senator Cornyn work on the bankruptcy venue issue is when you have bankruptcy judges, according to academics, tilting their rulings to give more money to big law firms and to give sweetheart deals to the corporate debtors, to the detriment, we're talking according to academics, billions of dollars being transferred. And the judges are doing this, according to the academics, in order to induce these filings for whatever reason. They want the big cases, they like their names in the papers, it's prestigious for their communities. The same

thing is said about the patent docket, right? Patents and bankruptcy are the two areas where people, where academics who have studied this believe you have by far the most forum selling. By contrast, I've also looked at, you're talking about the single judge divisions, the number of times that venue has been transferred due to a mandamus. In other words, the district court grabbed on to a case that they shouldn't have. My understanding is that against Judge Kazimerich, who's one of the targets of these criticisms, has been mandamus zero times. No court has ever said that he improperly exercised venue. In the F.A. Pristone case, that has gotten a lot of attention. My understanding is the motion wasn't even filed.

Nobody even objected to venue in his court. So we can have a debate about these topics. I would just say that we should have it in a global way. Let's talk about all the issues, keeping in mind that when a district judge issues one of these controversial national injunction type cases, they get immediately appealed and reviewed de novo. There's no higher court deferring to the district court. By contrast, when we're talking about bankruptcy, when talking about the attorney fee awards that are intended to sort of induce filings, the district judge basically has full say. I mean, you know, you clerked on an appellate court, you didn't

spend your days reviewing attorney fee filings. We defer to the bankruptcy court. We defer to the district court. Those aren't subject to what we call de novo review. And so to my mind, if we're serious about form shopping, we're serious about form selling, we should focus our energies and our attentions where the problem is greatest. What do Ontario dairy farmers bring to the table? A million little things. But most of all, the passion and care that goes into producing the local high quality milk we all love and enjoy every day.

With 3,200 dairy-firming families across Ontario sharing our love for milk, there's love in every glass. Dairy Farmers of Ontario. From our families to your table, everybody milk. Visit Milk.org to learn more. ANW is now serving pre-organic coffee and you can get a $1 small coffee, a $2 small latte or like me, a $1 small coffee and a $2 small latte. Available now until November 24th in Ontario only. Woohoo! Next legitimacy question. The end of the filibuster for lower court judges ended in 2013. Harry Reid blew it up.

Mitch McConnell blows it up for Supreme Court justices in 2017. Has that had an effect on the judiciary that you've seen yet? I think I may quibble with your premise. I don't see that as ending the Senate's practice of judicial filibusters. My experience working in the Senate, 0305, is that judicial filibusters weren't ever supposed to be a thing in the first place. During the Bush 43 years, there were a number of nominees

who were filibustered, including the former chief judge on my court. She was filibustered for four years. The history of the Senate is that on the executive calendar, judicial nominations are subject to majority vote. People think of the filibuster in the Senate, 60 votes, 67 in the past. That has never applied to everything. Budget reconciliation, it doesn't apply to, there are a number of things that are not subject to that rule where a majority has been able to invoke its will. And historically, judges has been one. All of a sudden, you saw the introduction of the filibuster concept in the early 2000s.

And now we're back to earlier tradition, if you will. So in my view, we've actually, the Senate has gone back to its traditions. State Solicitor Generals have popped up everywhere. Obviously, you're one of the OGs. Texas is one of the first to have a State Solicitor General. But now every state basically has one of these folks and the a state solicitor general, but now every state basically has one of these folks and the idea, or maybe not the idea, but the result, is the party out of power from the White House. All of those states hire someone to sue that administration, and it feels a little like a hammer and a nail.

Once you've hired a state SG, that hammer is going to go find some nails. What you think? I was waiting for the question. So, you know, if you look historically, you know, Chief Justice Rehnquist would often say that the quality of representation in the Supreme Court by state and local governments was actually very poor. In contrast, the US Solicitor General's Office has really been the gold standard. I'm basically an appellate lawyer by trade. And so it's in my DNA to look up to the USSG's office. Without regard to party or personnel, it's just always been regarded as practicing appellate advocacy at a very, very high standard. That was not true with other government agencies, government entities below the federal government. I mentioned Senator Cornyn, used to be General Cornyn, sorry, General Cornyn. But before

General Cornyn, he was Justice Cornyn. He served on the Texas Supreme Court and he saw what Chief Justice Rehnquist saw, which is, and he said this publicly, that he didn't think the state was well represented when it came to the Texas Supreme Court. And so, yes, he was the one who created the Texas Solicitor General's Office back in, I don't know, say 1999, something like that. And that was not the earliest state, but one of the early states that did it. And now it's proliferated. There are certainly a lot of state SGs around the country now. But from a legitimacy question, should I be concerned at all? You know, when you have

all these hammers running around, finding nails, this has led to then a lot of these cases that we talked about with forum shopping and nationwide injunctions, that those end up on the emergency docket for the Supreme Court, because now you're having to decide whether a state has been injured by something the federal government's doing, and whether the president has those powers. We're raising a lot of legal questions now that's putting the Supreme Court in this political position,

perhaps because of the rise of state SGs? Well, I'll just channel the sort of the Rehnquist Cornyn energy, if you will, which is, you know, now that I am a judge myself, my life is made a lot easier when I have good lawyers on both sides. Nothing makes me more nervous than when one side has really strong lawyers and the other side doesn't. Because my job is not to say you have have the best lawyer, and therefore you should win. That's an awful state of affairs. Obviously, the job is to figure out who's right on the

law, who has a stronger record, who has the legal authority behind them. And if I feel like there's bad law on one side, I worry, am I missing something? Am I about to rule? Not intentionally, but inadvertently, I'm just ruling for the better resourced party. And so the fact that we have better representation for governments at different levels, as opposed to this distortion, I view as a good thing. I'll just leave that. All right. Last legitimacy thing, and this one's the biggie that gets all the attention

at least, which is the ethics question, gifts, book deals, private planes, and then recusals. You've spoken about this publicly and I was hoping you could sing us a few bars. Sure. No, happy to, because I regard this as a very important topic. Look, if there is a sincere interest in debating ideas to strengthen trust and ethics in government, including the judiciary, I'm all for it. I always welcome those discussions. My concern about the current debate is that it's not about strengthening ethics. In fact, I would submit that the current debate is about undermining judicial ethics, and I'll explain what I mean by that. The debate we're

having right now is rife with double standards, and we can go into those if you want, but we're not talking about principles being applied across the board to every judge. What we're talking about is essentially sending a message to judges that if you rule the way the critics want, you can do whatever you want. We're not going to say anything, including actually crossing actual ethical lines. But if you rule in a way that we don't want, then we'll use every tool we have to destroy your reputations. The message that sends is don't follow the law, do what we want. That is the very opposite of judicial ethics. And I hope that much is unimpeachable. Then the only question is, am I right that these are double standards?

I'm happy to talk about that if you want. But I think it's pretty obvious that whether we're talking about Justice Alito's flags or trips that some justices take and others also take, I think it's pretty obvious that what we're talking about is double standard after double standard after double standard. And yet it is also the case, back to our federalists, right, if the court has neither, you know, the sword of the purse, neither force nor will, judgment only, how is a court supposed to balance the need for legitimacy

in the eyes of the public versus also being a counter-majoritarian institution that is supposed to stand a fort public opinion and the majority? In fact, if the majority were correct, we wouldn't need the courts at all. We wouldn't need the First Amendment if it were popular speech. We wouldn't need criminal process. So how is a judge supposed to enjoy public legitimacy and court public legitimacy without courting

public legitimacy? How are they supposed to balance that? Well, I certainly agree with you that the courts are the weakest branch, right? Just go back to your high school civics. It's the Congress that has the purse, the executive that has a sword. We have neither. So basically, people follow judicial rulings because there's an understanding that that's what we do. And the executive will send the marshals to enforce our judgments because that's the tradition. And I certainly hope that that continues to be the tradition. I frankly expect that it will continue to be the tradition for every possible reason. We are better off as a country when we have the rule of law.

Let me say again, if there is a sincere concern, we can apply, we can talk about adopting rules that will be applied across the board. To my mind, if we're worried about trips, we should be more worried about presidential trips. I mean, presidents have far more, but going back to our high school civics, presidents far more powerful than individual justices forever. I mean, I don't need to prove that, right? That seems obvious. So if presidents shouldn't go on trips ever, that's... I will not spend

a single unit of energy stopping a proposal to change those rules. My point is that's not what this debate is about. What this debate about is focusing on one person rather than other person based purely on, I like your rulings, I don't like your rulings. And that's just not a legitimate ethics debate. I don't like your rulings. And that's just not a legitimate ethics debate. I'm sorry, it's not. But you end up with sort of a Caesar's wife problem as well. If the public views that justice as coming too close to the line, skirting the ethics rules, and perhaps the reasons that they believe that are because it's been ginned up, let's say, by people who are actually

trying to undermine the court's legitimacy. It nevertheless has that effect. Do we need to tell judges about these specific ethical rules and where the exact bright line is, or can they just be above reproach? But here's the thing, it only has that effect because people are trying to have it. Let me explain. And I'm not, to be clear when I tell this story,

I'm not trying to pick on anybody. I'm just using this as an illustration. Justice Jackson received some fancy tickets to a Beyonce concert. Okay. No, was that painted as corrupt? Right? An extraordinarily wealthy Hollywood celebrity who donates regularly to certain political causes. No, this was, I believe the media described this as an awesome gift. It was considered glamorous. So a Texas philanthropist is shady. A Hollywood celebrity is cool. I'm sorry, I don't see it. And again, if we want to just get rid of it all, I'm not going to worry. I'm not going to spend any energy stopping a legitimate discussion. I'll give you another example. The Wall Street Journal had a piece where it discovered that,

I believe, like over 100, primarily district judges had somehow missed, I think there was a glitch in the system, ruling on cases where you actually have stock interests. I'm not aware that they found anybody who was doing this intentionally, who was actually ruling it to feather their own nest. That obviously would be extraordinarily corrupt and would be, I assume, subject to potential impeachment. I'm not aware of those allegations. But the point is, they did a systematic study. It wasn't because I don't like that judge or I don't like this ruling. It was, this is a serious ethics problem. It may not be actual corruption, but it looks bad when the computers aren't working. And

the judiciary, I think they quoted a number of judges understandably horrified. I had no idea. I didn't know, you know, those sorts of quotes. And I assume and I believe the problem has been fixed. That's the example of a genuine, earnest, sincere discussion about ethics. No, no. I've got Another three hours. What? That's my point. If we want to have a legitimate conversation that is not geared towards picking on a particular justice for

particular ruling, I'm all for it. But let me give you an example. The Washington, let me explain the point before I talk about the Washington Post. Justice Alito's flags have become a thing. Okay. It's extraordinarily absurd controversy. I assume you guys have heard about the certain flags. I'm not going to bore you with it. But the bottom line is the argument against him is that, look, in certain contexts, some people might construe it as pro-Trump. Okay. By contrast, Justice Ginsburg, on the record, during a New York Times interview, disparaged

Trump in various ways. And then the day after the election wore her famous dissent collar onto the bench at the Supreme Court. This was applauded. She was awesome. I'm not seeing the legitimacy of this conversation. And what's interesting about this is the Washington Post, the Justice Alito's flags, this came out within the last, what, six months, I think, right, this year. This story was known to the Washington Post in 2021, I believe. The Post sent a reporter, sent their top Supreme Court reporter to investigate. And you'll notice there was no story because

it wasn't a story. It was silly. It was dumb. And what I think media, what people who have studied the media, I think some of the outlets said, it's obvious what's going on. We cover the Supreme Court differently after Dobbs than before. And perhaps the election year as well. My point is, let's just be honest that what's going on here, it's not a sincere concern about ethical standards. Like I said, if we want to have that debate, I've been concerned about forum selling for 20 years. I am interested in improving judicial

ethics, but it's got to be about ethics, not about rulings you don't like, because that's a completely different conversation. All right. In 2006, you wrote in the green bag about birthright citizenship, the idea that under the 14th Amendment, someone born on US soil is, by that fact, a US citizen. You wrote, and by the way, thanks to Josh Blackman for asking this question to you before. So thanks, Josh, if you're listening. You wrote, some are saying you are walking back your, sorry, that's not what you wrote. Here it is, it was 2006.

Congress approved the citizenship clause to overrule Dred Scott and elevate citizenship by place of birth to the status of constitutional law. But you noted that there were people trying to undermine the idea of birthright citizenship, sort of in our immigration debates back in 2006, and you ended with Dred Scott too could be coming to a federal court near you. But of course, now Texas, for instance, has been trying to invoke the invasion clause, arguing that this is a different situation now. And I was curious how you think the invasion clause and if you would explain that interacts

with birthright citizenship as you and I ended up having a fun conversation about Nazis bringing their pregnant wife to shore in a submarine. If you're a lawyer you might know which case I'm referring to. There were uniformed Nazis in World War II. I think there were, was it 4-6? A famous Supreme Court case called Ex Party, Kieran. Yeah, it's anyway, they get to shore. I mean, honorable Nazis, you have to agree.

They come to shore in their uniforms, take off their uniforms and bury their uniforms and then try to go sabotage things. But like how classy to show up with your swastikas in tow. So the question would be, all right classy to show up with your swastikas in tow. So the question would be, all right, they show up, but you know, wifey is also in the sub and she's nine months pregnant. Miserable, though it's just horrible to be 40 weeks pregnant in a submarine with Nazis. And she makes it and she gives birth in the United States. Is that birthright citizenship?

So I'll give the same limited answer that I gave to Professor Blackman because you're talking about the evasion case, which is a pending case. I have a judicial opinion on that. People can read it if they want. We have a saying in my chambers, which is nobody reads. And that's really all I was trying to communicate. Nobody reads, right? People think they know what's going on and they say so-and-so said X. It's like, well, why don't you just read what they actually said?

That's all I was actually trying to say in my answer, which is if you look at my previous writings, I made clear, portrayed citizenship obviously does not apply during wartime. I'm not aware of anybody, any legal authority who thinks it does. So I'm just stating, I think what's obvious in an event established and in an event what I said before. And we have that pending case that I won't

talk about, but yes, there are cases where the state of Texas is arguing that the current illegal immigration crisis constitutes an invasion. And I have an opinion on that topic. First Amendment. Strongest it's ever been or me? Because it seems like the right particularly feels like religion is under attack. Cancel culture, for instance, is ruining the country. But legally, you look at Supreme Court decisions

and the First Amendment just keeps winning and winning and winning, free exercise clause, free speech. How am I supposed to marry those two? Oh, well, it depends on what universe you're looking at. If you're looking at the universe of cases that the Supreme Court takes, and I'm just, you know, I'm not taking a position, I'm just explaining what the data shows me.

Again, nobody reads, I try to read. If you read just the cases that they take on cert, full oral argument, merits treatment, then yes, it's got the record that you're talking about. If you look more broadly, I'll just use one data set that I find of interest. You all remember COVID, right? We used to have all these challenges to various COVID era restrictions by local, state, and federal governments. And there are, among other things, religious liberty challenges to these COVID restrictions. Would you like to know the win-loss record

for the religious liberty claim when you had one of those challenges and the justices disagreed on what to do? Two and eight. So perhaps we're looking at the wrong data set. It depends on the data. And please read. Yeah, read the virtual cases.

Don't just comment. Okay. And to the extent that there are reporters in the room, I actually will use this as a platform. Don't just comment. Okay. And to the extent that there are reporters in the room, I actually will use this as a platform. Don't just repeat what somebody's told you about. Actually read the document. I realize that some of these documents are painful to read and then terse and lawyers

are typically bad writers and judges are just lawyers. There is a reason I try to write short opinions. I actually try very hard to keep my opinions short. That's a thing for me. Because at the end of the day, judges don't write opinions for lawyers. I mean, obviously we do, but we're writing for America, right? We're trying to shape, help to explain what the rules are so that American citizens and organizations can know how to comply with the law. And so when people write these overly long opinions that are hard to follow, or too many opinions

in some cases, that can make understanding of the law too difficult. So it's on us to make it more accessible, but I do think it's on everybody to then read them. Okay, last question. You appeared before judges, you helped confirm a number of judges, and now you are one. Is there anything, any quality in a judge you would go back and tell that Jim Ho, pre-judge Jim Ho, you know what, this quality is more important than I thought it was. And in particular, you have taught me about stress wood.

Yeah, so, you know, a lot of people pick, focus on, you know, intelligence and credentials and qualifications and all those things are important. I'm not trying to suggest otherwise. But I think the thing that misses is the fact that if you do this job, every case, believe it or not, has two sides. And no matter what you decide, one person is going to be very unhappy. The bigger the case, the more publicity around a case, the greater the criticism. And so what you want, I think, in a judge is the ability to accept the criticism, to

understand it's just part of the job, and to not let that worry you, to not let that be a problem. Um, yeah, so I've, I've, I've given a whole speech on this. I won't belabor it, but you asked about stress wood. So, uh, there's a metaphor that I really like. Um, I don't know if you all have heard about the biosphere. This is thing in Arizona, fully enclosed environment where scientists can, uh, analyze a number of natural phenomenon. And one of the things they discovered accidentally, as it turns out, is that in this enclosed environment, trees

are able to grow very quickly at first, and then they collapse. And the reason, as it turns out, is that there's no wind in an enclosed environment. Now you think, you know, stress, we call the stress wood, a life without stress sounds wonderful, but as it turns out, you need stress. Trees need the wind as they're growing up because they then develop stress wood, called muscles, if you will. By having that experience, you grow your stress would and then you can withstand storms in

the future. I'm a parent first and foremost. So I think of this as a parental philosophy and secondarily as a judicial philosophy. We would all love our kids to live a life without stress. But that's not, at least I don't think that's a good way to do it because your kids are going to deal with stress. My kids are going to deal with stress when they grow up and they need to be ready for it. And what's true of children, I think is also true of judges that as we get used to these jobs,

get used to the criticism. If you don't want to, if this is not a life for you, then you know what, do something else. You know, this life tenure, not a life sentence. But if you're going to do this job, just be aware, particularly in this era, I'm sorry to say this, there are certain cultural elites who know that if they apply pressure, they can often get the results that they want from courts. And what I would submit is that the job of a judge is to ignore the criticism. As much as we're humans, you know, the typical federal judge has a resume full of gold star credentials, fancy schools, fancy clerkships, fancy government positions, partnerships at

fancy law firms. And when you take that person who is used to collecting gold stars all their lives and you give them robes, what do you expect them to be motivated by? Wanting more gold stars. So I get that. But I think to do the job right, you

have to fight that instinct and really just focus on the law and ignore whatever public pressure may come. Judge Ho, thank you so much for joining us today. Thank you. Thank you.