Cold Media.
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 Freoff, of the history of eugenics in Texas called The Purifying Knife.
I'm Stephen Monchelli. 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 Hope, who, on what might have been the biggest day of his judicial career so far, couldn't have picked a creepier setting.
The fifty two 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 two thousand. At age twenty seven. He joined a high powered legal team and that forever shaped the history of the United States.
From NBC News in Washington, this is Meet the Press with Tim Russer.
Our issues This Sunday, thirty six days after the election.
Al Gore ends his campaign. For the sake of our unity as a people and the strength of our democracy, I offer my concession. George W.
Bush will be the forty third President of the United States.
I'm thankful to the American people for the great privilege of being able to serve as your next president.
Young and almost entirely unknown outside of legal circles, James Hoe joined some of the most famous conservative lawyers in the country in the year two thousand 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 Hoe rubbed shoulders with right wing luminaries like the man who in five years would be the Chief Justice of the Supreme Court, John Roberts.
Hoe rocketed to judicial superstardom. He clerked for Supreme Court Justice Clarence Thomas for a couple of years, then from two thousand and eight to twenty ten, 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 U s Supreme Court. On January four, twenty eighteen, Hoe celebrated his next rapid climb up the judicial ladder when he has sworn as a newish judge on the United States Fifth Circuit Court of Appeals, which oversees federal cases that are originate in Texas, Mississippi, and Louisiana.
Hooe's swearing in ceremony took place at the mansion of
Dallas real estate billionaire Harlan Crowe. 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 Judge Just Clarence Thomas, including cruises to Indonesian islands on the businessman's one hundred and sixty two foot super yacht and a one hundred and nineteen thousand dollars bible that once belonged to leading abolitionist
Frederick Douglas. Crowe flew Thomas to Dallas on his private jet so the justice could swear in his former clerk. The surroundings included Crowe's unnerving souvenirs, once described on the program Inside Edition.
Questions are being raised today about Supreme Court Justice Clarence Thomas's friendship with a billionaire who collects Nazi memorabilia. Published reports say Dallas tycoon Harlan Crowe's controversial collection includes Hitler's notorious autobiography Mind Komf, signed by Hitler, oil paintings by Hitler and Lennon Napkins embroidered with the Nazi swastika. The collection is housed at Crowe'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.
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 Zedung, Nikolai Chacchescu, the eccentric Romanian tyrant violently deposed in nineteen eighty nine, as well as a bust of Gavrilla Prinsep, the Bosnian Serb nationalist who triggered World War One with his assassination
of Austrian Archduke Franz Ferdinand. Crow claims that his clutch is somehow a statement of his hatred for both communism and fascism. The creepy artwork perhaps foreshadowed Hoe'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. In this episode, we'll look at the career of Judge James Hoe, his alarming right wing judicial activism, and the strange history of the Fifth Circuit Court of Appeals, which since the Reagan administration has transformed for one of the most liberal judicial bodies in the country too, perhaps the scariest court in America.
Given its current reactionary reputation. It's a bit ironic. The Fifth Circuit Court convenes in a New Orleans Courthouse named after John Minor Wisdom, a New Orleans native who formed a critical part of a quartet of liberal judges known simply as the Four who in the nineteen fifties and nineteen sixties issued a series of revolutionary rulings that advanced the civil rights movement. President Dwight Eisenhower pointed Wisdom to
the bench in nineteen fifty seven. He quickly formed an alliance with three other liberal judge is on the Fifth Circuit, Albert P. Tuttle of Georgia, John R. Brown of Texas,
and Richard T. Rivis of Alabama. Rivers was the only Democrat on the squad that came to be known as the Fifth forour these liberals typically prevailed over the conservatives serving on the Fifth Circuit, and at that point, the Fifth 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 boar on the front lines of the civil rights struggle. In nineteen fifty eight,
the Fifth Circuit began shipping away at Jim Crow. The court heard the case of Joe Dorsey, Junior of New Orleans challenging the 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 Fourteenth 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. In the coming years, the Fifth Circuit forced Saint Helen Parrish and 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, Wisdom 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.
James H.
Meredith is formerly 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 can following ads that accompany the registration of the first Negro in the university's one hundred and eighteen 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 stad 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 sure to disagree with the law, but not to disobey 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.
In nineteen sixty v three of the Fifth Circuit ordered the desegregation of community centers cultural centers, playgrounds, and public parks. The next year, the court ruled the jury selection system in Orleans Paris, where as Wisdom noted, no black had ever set on a grand jury or trial jury panel,
violated the Constitution. Two years after that, the Fifth Circuit overturned Louisiana's photo registration literacy tests, which required as 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.
Perhaps Wisdom's most significant opinion came with the nineteen sixty eight United States v. Jefferson case, which blocked states from avoiding compliance with the Brown v. Board of Education decision by setting up so called quote school choice plans in which parents allegedly freely chose to send their children to segregated schools.
Wisdom wrote, the Constitution is both color blind and conscious. 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 color blind, but the Constitution is color conscious to prevent discrimination from being perpetuated and to undo the effects of past discrimination.
Quoting 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 bussing as a means of genuinely integrating schools, and also introduce the concept of affirmative action hiring practices in other stubborn aspects of racial exclusion.
The Fifth Circuit's record of judicial progressivism continued through the nineteen seventies. A nineteen seventy six 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. 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 specially be as bad as the famously liberal Chief Justice Warren. President Clinton would give was then the Presidential Medal of Freedom in nineteen ninety three. Wisdom died six years later. 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 hope fully less infamous sponsors. In nineteen eighty one, the federal judiciary was reorganized. The Fifth Circuit Court now heard appeals only from Mississippi, Louisiana, and Texas. A new eleventh Circuit court now here's cases
from Alabama, Georgia, and Florida. We should provide a hopefully brief civics lesson here. The Fifth Court consists of seventeen 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.
Among the act of judges, those appointed by Republican presidents outnumber those appointed by Democrats by a margin of twelve to five. Donald Trump applented 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.
Even in that hyper conservative company, James Hoe has stood out. Mike Davis, the president of the Pro Trump Article three Project, a group dedicated to pushing federal courts further right, has said, quote on every crucial but controversial legal issue, Jim Hoe is constantly the tip of the spear.
It has been a cliche among the American right wingers that liberal judges from the time of Franklin Roosevelt Lawan 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. Hoe's open political advocacy, however, has raised no LA arms for those saying presume advocates for judicial neutrality.
While he served as Texas's Solicitor General, Hoe 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.
As a judge, Hoe led a boycott of legal clerks who graduated from Yale Law School to punish that institution for its supposed leftist cancel culture and intolerance and conservative views. During his speech to the far right Heritage Foundation, the authors of Project twenty twenty five, Hoe ridiculed lawyers with 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. Here young conservatives to assert themselves against the sposed popularity of political correctness.
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 quote immoral, tragic, and violent
taking of innocent human life. In twenty eighteen, 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.
A district court overturned the law, but Hoe, in the fifths Circuit reinstated it, arguing that coarse burial protected religious freedom of the Catholic bishops. Quote. The First Amendment expressly guarantees the free exercise religion, including the right of bishops to express their profound objection to the moral tragedy of abortion, Hoe 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 Hoe has staked out in extreme position. In Man's First successions. The Fifth Circuit Court, by an eight to seven vote, narrowly avoided overturning a federal gun law that prohibited interstate gun sales. Hoe offered a bitter descent, 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, how ridiculed advocates of gun control is suffering from hoplophobia, the irrational fear of guns.
Hoe in the entire Fifth Circuit achieved national infamy after the Supreme Court raised almost half a century of abortion rights when it overturned the Roe Vwaid decision in the Dobbs v. Women's Health Organization case on June twenty fourth, twenty twenty two. A little more than a year after that landmark case, on August sixteenth, twenty twenty three, the Fifth Circuit upheld tightened access for women to mifipristone, 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 two thousand, but only for prescription by hospitals and other medical facilities. The FDA expanded access to the medication in twenty sixteen and gave doctors the right to directly prescribe mifipristone in response to the COVID nineteen pandemic. Starting in twenty twenty one, Women could receive it through the mail in twenty twenty.
For an anti abortion organization, the Alliance or Hippocratic Medicine intentionally incorporated in twenty twenty two and Amarillo, which placed it in the jurisdiction of the famously anti abortion Federal District Judge Matthew J. Kasmeric, like Judge Hoe, Cosmeric, 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 US Senate. Chasmeric has described gay and trans people as mentally disordered. The Alliance for Hippocratic Medicine filed student Caasmerics Court seeking to overturn the FDA's approval of mythipriss Stone, even though decades of research had demonstrated its safety and its effectiveness for treating Cushing syndrome, a severe endocrine disorder.
None of the doctors in the Alliance had ever been involved in a medical case in which the use of mythipresstowne had been considered. In his opinion, Kasmeric showed his disdain for medical personnel providing women with reproductive care, referring to them as quote abortionists and called terminating pregnancy through medication quote starving the unborn human until death.
Courts require that parties have what just is called standing in order to file a lawsuit. That means, for instance, that one party has been in some way directly inured by the other party. President Joe Biden's food and Drug administer I should question how the doctors and the Alliance for Hippocratic Medicine had in any way been directly harmed because women have access to abortion medications. Chasmeric found a fans full way to grant the Alliance a right to sue.
He claimed that treating the rare complications from mitha pristone overwhelmed hospitals in placed quote enormous pressure and stress on the doctors during emergencies and complications. After granting the Alliance standing Chasmeric issued a preliminary injunction suspending the FDA's approval of the drug. The decision would go into effect in seven days in order to give the federal government a
chance to file an appeal. In his decision, Chasmeric cited two studies that claimed the drug was harmful, but both had been retracted by a medical journal. In effect, Kasmeric had banned mifipristone nationwide. The United States Justice Department and dan Co Laboratories. MiFi pristone's manufacturer appealed, and the case went to the Fifth Circuit. Judicial chaos surrounding the status of myth for pristone reigned within hours, as ABC seven in Los Angeles reported.
A judicial bombshell involving abortion that could have an impact in all fifty states. A Texas federal judge revoking FDA approval of an abortion pill that's been used for more than twenty 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. I went Ashoo's reporter Amy Powell, joining US live in studio with more tonight, Amy.
And Michelle This is causing a lot of concern. The reversal of Roe versus Weighed 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 fifty 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 MiFi pristone. Those conflicting orders mean this case is likely to end up in the Supreme Court.
The MiFi pristone 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 MiFi pristone case and how Judge Hoe, 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 two bizarre messages from our sponsors.
When the Fifth Circuit heard the appeal of Kasmeric's ruling, Hoe 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 receives speaking fees from the organization. Hoe brushed off this obvious.
Conflict of interest on August sixteenth, twenty twenty three. That court didn't completely uphold Chismeric's ruling, but it did impose numerous restrictions on the abortion pill called MiFi Pristown, 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 miphi pristown would have been cut from seventy days of pregnancy to about forty nine.
Hoe wanted to go much further than the Fifth Circuit's majority. He wanted to rescind the FDA's approval a myth for press though, 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 grand stand about a Case's what Hoe did in his concurrence when he bitterly complained that some believed that quote no one should ever question the FDA.
Hoe then asked the public to pity the obstetricians he claimed suffer because of women's abortion rights. Hoe 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. Hoe argued that doctors could suffer the same
sort of damages when a pregnancy is medically ended. In his concurrence on MIPH Pristowin, Hoe wrote 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 doctor's delight in working with their unborn patients, and experience an esthetic injury when they are aborted.
Leo Yu is an assistant professor of law at the University of Massachusetts at Dartmouth who specializes in civil rights law. You 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 is created in the states of Texas, Louisiana, Mississippi. In twenty twenty one, he
created the podcast Plead the Fifth Professor. U believes that when Hoe writes extreme opinions, such as in the methaprostone case, he's desperately trying to get one man's attention.
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, pe Paul wants to see cute little ultrasoule of babies, and that makes important, you know, them having the standing to challenge abortion pills, they wouldn't be able to see those cute little altha sounds 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 whod trying to audition for the Supreme Court, Like, hey, you think you found a concerns of the judge somewhere in DC, Look at me. I'm even more. And that's what it is.
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, and it's ruined. As Texas Tribune writer Eleanor Clibanoff put it, quote, if the Fifth US Circuit Court of Appeals as a boxer, you'd bet on the other guy.
Writing a Supreme Court's reaction of Fifth Circuit rulings in July twenty twenty four, Klebanov noted that only three of the tribunal's decisions had been upheld while aid had been overturned, a one loss record that ranked amongst the worst among circuit courts in the country in a Metha pristone case, just as Brett Kavanaugh, hardly a Bolshevik, expressed dismay that the Alliance for Hippocratic Medicine had been granted standing.
Kavanaugh wrote this quote, 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, quote, virtually every citizen would have standing to
challenge virtually every government action that they do not like. Governing, he suggested, would become in possible.
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 Rahemi versus the United States, the Fifth Circuit overturned a federal law that prohibited domestic abusers from buying firearms. The Highest Court on June twenty first, twenty twenty four, overturned that decision by an eight to one margin. Chief Justice John Roberts, who generally supports a very broad view of gun right, 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. Fusser, you told us that as conservative as Supreme Court majority might be outside of Clarence Thomas, they have found the Fifth Circuit's rulings to be an embarrassment to conservative judicial philosophy.
All that again, I think that was the a to one opinion, and Clarence Thomas was the only person who would agree was the Fifth CircUse. 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 it can lays with some academic legitimacy and knowledges, some sort of attention seeking paragraphs that would make people hold feel some sort of feeling.
On the last day of it's twenty twenty four session, the Supreme Court sent back to the Fifth Circuit the case involving a twenty twenty one 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 deplatform Donald Trump after the president encouraged his supporters to ransack the capital and stop the counting of electoral college votes on January one. The Fifth Circuit previously upheld the law, claiming that it rejected quote the idea that corporations have a free, willing, First Amendment right to censor what people say.
Hoe and his allies on the Fifth Circuit, however, are fine with censoring free expression by members of the LGBTQ community. In March twenty twenty three, Walter Wendler, the president of West Texas A and M University, a public institution, cancel at drag shows schedule at Legacy Hall, a campus building. Organizers plan to use proceeds from the performance to raise money for the Trevor Project, a nonprofit group that seeks
to prevent suicides in the LGBTQ plus community. In a statement canceling the show, Wendler explicitly said that his private religious beliefs guided his decision.
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 reserve a single thread of human dignity? I think not. As a performance exaggerating aspects of womanhood, sexuality, femininity, gender, drag shows stereotype 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 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.
Spectrum WT, a pro LGBTQ student organization, filed a suit challenging the band and requested an injunction blocking Wendler's action, but Judge Kasmirick the same jurist who initially blocked access to MiFi pristone 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. Quote 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, Cosmeric wrote in his September twenty two to twenty twenty three opinion.
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 eighteen, twenty five, by two to one vote, the panel reversed Kasmeric's ruling. Judge Leslie Southwick, a George W. Bush appointee, and a Bill Clinton appointed US Circuit judge James Dennis ruled that West Texas A and M had violated the gay student Organization's express of rights.
Predictably, Hoe dissented. He simply echoed the arguments used by the university president, insisting that banning drag shows somehow advanced inclusivity.
University officials have determined that drag shows are sexists for the same reason that blackface performances are racist, and Supreme Court President demands that we respect university officials when it comes to regulating student activities to ensure an inclusive educational environment for all.
Spectrum wt's victory proved temporary. The panel's decision would not go into effect until the case was heard by the entire Fifth Circuit Court. Meanwhile, a full trial unfolded in
Kasmirics 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. One twenty fifth a panel of the Fifth Circuit also upheld a new state ban on certain types of drag performances. Judge Kurt Engelhart, 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.
While the Fifth Circuit chipped away at free speech rights for the LGBTQ plus community, the advanced the rights of states to impose speech on public school teachers. The Full Court, by a twelve to sixth margin, lifted a district court's hold on a Louisiana state law require siring teachers display post size copies of the Ten Commandments in public school classrooms, in spite of the First Amendments prohibition establishing a state
religion or requiring religious practice. In the efforts of the founders of the American Republic, like Thomas Jefferson, direct a wall of separation between church and state. James Hose celebrated the decision. The Louisiana law was the only constitutional host said it quote affirms our nation's highest and most noble traditions. That claim left Professor U baffled.
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 establed republic to a situation where we push our citizens to believe in certain things religiously. That is exactly the reason widely left Europe.
The Fifth Circuit has presented a threat not only to the separation of church and state, free speech, and LGBTQ plus rights, but has also placed the rights of workers
in its crosshairs. On August nineteenth, 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 Fifth 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.
On rare occasions, the Fifth Circuit might still acknowledged as society is tilted against the poor and people of color. A panel made up of Fifth Circuit judges ruled that Labine Conan could proceed with our lawsuit against the United States Post Office, a landlord who owns two properties in
Ulus suburb between Dallas and for Worth. Conan claimed that, beginning in twenty twenty two, 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.
The Post Office is mostly shielded from lawsuits by a legal doctrine called sovereign immunity, under which, as legal analyst Eli Msdonnell 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 Bucanan case, however, was that in this circumstance, the government was causing intentional
damage to a private citizen. This time, the Fifth Circuit ruled in favor of a marginalized citizen and ruled the suit could go forward. This rare progressive ruling was for not However, this Supreme Court overturned the Fifth Circuit once again, Clarence Thomas wrote the opinion for the five four majority, essentially ruling, as miss Stalls summarized the case quote that the post officers immune from liability even when its workers
intentionally refuse to do their jobs. Miss Stalls suggested that this decision carries ominous implications for the upcoming election, should the US Postal Service, for instance, refuse to deliver mail in ballots in spite of James Hosts status as an immigrant.
His most alarming opinion might be regarding birthright citizenship. Ratified in eighteen sixty eight, just three years after the end of the Civil War, fourteenth 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.
For one hundred and twenty eight years, 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 eighteen ninety eight United States versus Wang kim Ark case, the Supreme Court upheld the citizenship of a man born in the United States
to Chinese parents. The government tried to block Arc from returning to the United States after he visited China, based on the eighteen a two Chinese Exclusion Act, which barred the Chinese from immigrating here. The court ruled sixth to two that ARC's birth in the United States established his American citizenship and his right to reside here.
James Hoe 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 two thousand and seven opinion piece for the Des Moines Registered.
However, as the political wins shifted strongly against immigrants, particularly in the Trump era, Hoe is all so tilted in a dramatically different direction. In a twenty twenty four interview, Hoe 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.
Hoe 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 nine to eleven, 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.
The question of birthright citizenship might now be out of the hands of Hoe and the rest of the Fifth Circuit. On December fifth, 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. Doctor U thinks that the Supreme Court is likely to accommodate those restrictions, even as they reject James Hoe's more extreme theories.
I think that Supreme Court would roll back some portion of the Fourteenth Amendment protection over people who are born in this country, but I don't think they are going to what justice Hoe is going after that is the invasion theory.
That doesn't mean that James Hoe 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 Hoe's mentor, Clarence Thomas, who turned seventy eight on June twenty three, and Samuel Alito, celebrates his seventy sixth birthday on April first. Court watchers are speculating that Alita might step down as early as October.
His wife, Martha Anne, 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 here elections have improved significantly in recent weeks. Alita may want to retire, while a Republican controlled Senate would still be able to rubber
stamp Trump's choice for his successor. Alito also has a book coming out on October sixth, 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 Hugh 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 you think that home might lack the polish that a powerful lobbying group would see.
I think, you know, it's not a secret that he's trying to get there, but I honestly think it's not gonna be him. He doesn't really fit into the profile of a person who would get there. I think the FESSOC, 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 lists 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 a little is going away right, Uh, they're looking for a conservative. But I don't think Justice Whole is in their favor because I think they're trying to find another person who
is more sophisticated than Justice Whole. If I may say, may say that they wanted to find a person who is definitely a conservative, but being able to rewrap the message with academic legitimacy and to forge anin for majority at the Court to push through their agenda.
Recently, Trump said he was considering Ted Cruz of Texas for the next Supreme Court vacancy. If so, James Hoe may be enjoying his lifetime post at the Fifth Circuit for the foreseeable future. Hoe celebrated his fifty third birthday
on February twenty seventh. That means his legal philosophy will shape gay and trans writes 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 the healthcare and where the boundaries will be
drawn between church and state for years to come. Hoe 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 forty million Americans in Texas, Louisiana, and Mississippi for decades to come.
We'd like to thank our friend Steve Mason for providing some of the voices today. This is Stephen maun Cholley for it could Happen Here, And.
This is Michael Phillips. Until next time, Thanks for listening. It Could Happen Here is a production of cool Zone Media.
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