More Insane Nut-job Radical.........

How Much More Radical Could the Supreme Court Become? Look to the Fifth Circuit.

Meet the power-grabbing Trump judges who are forging MAGA justice.

Pema Levy

Imagine Obamacare is dead and millions of Americans have lost health coverage. Abortion is illegal nationwide, pills to end pregnancies are off the market, and doctors wait until the mother’s death is imminent before attempting lifesaving care. Domestic abusers freely carry guns and government attempts to stop untraceable homemade semiautomatic rifles have been quashed, rendering gun licenses and background checks useless. Environmental regulations founder as climate change worsens. With the sidelining of the Securities and Exchange Commission (SEC) and the Consumer Financial Protection Bureau, Wall Street has returned to its greediest days, making bets that threaten economic stability and preying on consumers with predatory loans and hidden fees. Officials are barred from even asking social media platforms to stem disinformation or calls to violence. Police, unrestrained by federal immigration law, round up, detain, and deport suspected immigrants. Washington can no longer fulfill treaty obligations as states erect barriers along US borders, causing international chaos. And organizing a protest against any of the above may result in you being sued successfully, making free speech an expensive proposition.

These are not mere hypotheticals. The 5th Circuit Court of Appeals—transformed by appointees of former President Donald Trump—has issued decisions greenlighting every one of these eventualities. While some were put on ice by the Supreme Court, others remain in effect in Texas, Louisiana, and Mississippi, the three states the circuit covers. In those states, women have no right to end pregnancies that threaten their health, the enforcement powers of dozens of federal agencies are in doubt, and protest organizers are vulnerable to legal retribution. Other 5th Circuit decisions, from a ruling hamstringing the SEC and similar agencies to one legalizing bump stocks—the device that enabled a lone shooter in Las Vegas to kill 60 people and injure more than 500 in just 10 minutes—are now the law of the land. This is neither the outer bounds of what this radical court will do, nor the end of its impact on all Americans. It is the beginning.

The US Supreme Court oversees 13 judicial circuits, each with an appeals court that hears federal cases arising within its jurisdiction. Every term, the high court agrees to review only a small number of appeals from the circuits, which leaves those appeals courts with final say on most matters. The 5th Circuit has been a right-leaning enclave for decades, filled with judges from the Republican strongholds it oversees. But after Trump placed six new judges on the 17-member court, the relatively staid conservatism of Reagan and Bush jurists gave way to the slash-and-burn tactics of the MAGA movement. On their watch, the court’s decisions, substantive and procedural, have defied judicial precedents and norms while conforming to a familiar far-right agenda of neutering Democratic policies, gutting abortion rights, and undermining the authority of federal agencies.

“There is a new breed of Republican-­appointed judge,” says Stephen Vladeck, a Georgetown Law professor who has followed the 5th Circuit closely. “Much like the divide between Trump Republicans and Bush Republicans politically, there’s a divide between Trump Republicans and Bush Republicans judicially. And what the 5th Circuit has, more so than any other court in the country, is a critical mass of Trump judges.”

Their goal is to move the law far to the right. In case after case, the 5th Circuit has issued rulings that even this Supreme Court regularly strikes down. “It should be shocking that a very, very conservative appeals court is still losing so often with the most conservative Supreme Court in our lifetimes,” Vladeck says.

But even rulings that are overturned move the Overton Window, dignifying once unimaginable outcomes as acceptable and expanding the public’s notion of what’s possible. “These judges know what they’re doing,” says David Lat, author of the Original Jurisdiction newsletter and a longtime chronicler of the courts. “When they are stepping out on a limb, they know that some of their more extreme positions are not going to stick even with a very conservative Supreme Court. But it’s all part of a larger conservative legal movement.”

“They’re winning the war,” he adds.

Some 5th Circuit judges have loftier ambitions: At least two of Trump’s appointees are widely seen as auditioning for a spot on the Supreme Court should the former president reenter the White House. In this scenario, being slapped down by SCOTUS is less an embarrassing rebuke than an acknowledgment of a judge willing to take things further. “You could see in the 5th Circuit signs of what a Trump Supreme Court would really look like,” Vladeck says. “That’s terrifying.”

In the final days of the Supreme Court’s latest term, which ended July 1, the Republican-­appointed justices issued two momentous opinions that expose even long-established federal regulations to legal challenges. The first ruling, in Loper Bright Enterprises v. Raimondo, overturned Chevron deference—a doctrine that had instructed lower courts to defer to federal agencies’ expert interpretations of contested statutes—in effect snatching back that power for itself.

Three days later, the court supercharged its attack on federal authority in a case known as Corner Post by eviscerating the six-year statute of limitations for challenging agency regulations. Now, virtually any litigant with a bone to pick can sue to overturn a regulation, even if it has been on the books for decades. “No matter how entrenched, heavily relied upon, or central to the functioning of our society a rule is, the majority has announced open season,” Justice Ketanji Brown Jackson warned in a scathing dissent.

These two decisions have already teed up a “massive wave of antiregulatory lawsuits,” says Georgetown Law professor Brian Galle, and most “will be filed in the 5th Circuit.”

This wouldn’t be a new phenomenon. The circuit is already a mecca for aggressive judge-shopping, the practice of filing in a jurisdiction where judges are more likely to rule in your favor. Federal district courts select which judge hears a given case randomly, but in certain parts of Texas, litigants are virtually guaranteed to draw hardliners who will rule against Democratic policies. This means anyone bringing a right-wing lawsuit with radical, nationwide ramifications can be assured not only of a friendly trial judge, but also that the inevitable appeal will be heard by sympathetic ears.

“If you have a challenge to an agency action, you really want to look at filing in this circuit, because they’re interested in the issues and there’s an ever-increasing amount of good precedent for you,” says Dallas appellate attorney David Coale, whose legal blog, 600 Camp, focuses on the 5th Circuit.

Indeed, Republicans who dislike a rule or program that President Joe Biden has enacted regularly turn to Texas. “The Biden administration can basically not even take a breath without being sued somewhere in the 5th Circuit,” Vladeck observes. Texas judge-shopping helped Biden’s critics halt a key part of his student loan forgiveness plan. It’s why challengers to Obamacare’s free services, including contraception and HIV drugs, found plaintiffs who could sue in Fort Worth’s far-right district court, and why a policy group founded by former Trump officials relocated there from Virginia. It’s why, in Amarillo, a DC-based libertarian think tank sued to block appliance efficiency rules and a Wisconsin group took on a gun regulation. It’s also why Elon Musk fought tooth and nail to prevent his Texas lawsuit claiming the National Labor Relations Board is the “definition of tyranny” from being transferred to California.

Among the most potentially consequential examples of 5th Circuit judge-shopping is the effort by anti-abortion activists to reverse FDA approval of mifepristone, a drug used in medication abortions, which account for nearly two-thirds of terminated pregnancies in the United States. A Christian legal group incorporated a plaintiff organization in Amarillo, where Judge Matthew Kacsmaryk—who worked for a Christian law firm before Trump put him on the bench in 2019—is the sole federal judge. After Kacsmaryk issued a stunning opinion that banned mifepristone nationwide, the 5th Circuit Court of Appeals, rather than bat his ruling down, upheld it in parts. The drug survived only because the statute of limitations for challenging mifepristone’s approval had expired. The Supreme Court reversed the appeals court ruling in June, holding that the plaintiffs had no right to sue, but the case is likely to return to the 5th Circuit soon. Three states have stepped in as new plaintiffs, and thanks to the Corner Post decision, that statute of limitations no longer applies. For legal groups looking to eliminate abortion in the United States, the clearest path runs through the 5th Circuit.

Lisa Graves, who runs True North Research, a watchdog investigating right-wing legal funding, warns that the circuit’s judges “are enshackling the ability of the president to adopt policies that are widely supported and widely needed. And they are doing so with an almost unprecedented arrogance and aggressiveness.”

The 5th Circuit can accomplish its agenda only by upending settled law, and its precedent-breaking rulings gobble up an outsize share of the Supreme Court’s annual docket. It might seem reassuring that SCOTUS overturned 8 of the 11 5th Circuit rulings it reviewed during the most recent term—more rejections than any other circuit. (Fifth Circuit cases also accounted for nearly half of the Supreme Court’s grants of emergency relief, issued when a party asks the court to quickly halt a lower-court decision.) But this pattern of fringe rulings and rebukes serves a broader purpose for the conservative judiciary. It allows the appellate judges to shape national debate on hot-button topics and lets the Supreme Court, by knocking down the 5th’s wackiest rulings, appear more moderate as it trashes precedent and brazenly rewrites the rules of American democracy.

Within the crop of Trump judges transforming the 5th Circuit, two—James Ho and Andrew Oldham—stand out, not only for their willingness to implement a far-right agenda, but for their perceived ambition to join the Supreme Court.

Temperamentally, they are opposed. Ho is outgoing and adept at making headlines. His opinions read like partisan op-eds. Oldham is quieter, his writing more like a history term paper. But their goals appear broadly similar: a radical remaking of US law that would end abortion rights, restrict the role of the federal government, and elevate the power of individual states. “Ho might be the poster child, but Oldham is the laboring oar, where it’s really his opinions that are doing the most substantive work to try to move things sharply rightward,” Vladeck says. The two men, he adds, are “very different judges working toward the same goals very differently.”

The two judges, who both declined requests to comment, have another reason to hope for a Supreme Court promotion: Ho clerked for Justice Clarence Thomas, Oldham for Justice Samuel Alito, and both have been mentioned as likely replacements for their septuagenarian mentors, who are expected to retire if Trump wins. Both were forged in the fires of Texas’ hard-right partisan combat, a story that began in 1999, when then–state Attorney General John Cornyn created the solicitor general’s office. The federal government has its own solicitor general, a top-tier litigator who represents US interests before the Supreme Court, and Cornyn reasoned that Texas, too, should have such an expert appeals lawyer on staff. Within a few years, the new office was serving an equally important function: grooming the next generation of right-wing judges and politicians.

In 2002, Cornyn was elected to the US Senate and replaced by Greg Abbott, a right-wing brawler who described his job as “I go into the office, I sue the federal government, and I go home.” Abbott, in turn, brought on a hungry young lawyer named Ted Cruz as his solicitor general and instructed him to insert Texas into every high-profile conservative legal fight in the country. Cruz complied with gusto.

Abbott subsequently hired Ho, who’d worked under Cornyn in the Senate and had helped draft a memo to justify the use of torture after the 2001 terrorist attacks, despite Geneva Conventions prohibitions. Ho would later join a private firm where he took on pro bono cases, including appellate work for the First Liberty Institute, the Christian law firm that employed Kacsmaryk before he became a district court judge. Trump nominated Ho for the 5th Circuit in 2017.

Abbott hired Oldham in 2012 to work in the solicitor general’s office, where he helped challenge the Voting Rights Act and then-President Barack Obama’s immigration and environmental policies. Trump chose Oldham for a 5th Circuit spot in 2018. Stuart Kyle Duncan, another Trump appointee to the 5th Circuit, also worked for the solicitor general under Cornyn. In all, Trump appointed six lawyers from that office to federal judgeships.

When Ho joined the 5th Circuit, he asked Justice Thomas to administer his oath of office. A photograph of the swearing-in shows the pair standing before an enormous stone fireplace in the Dallas library of Harlan Crow, the billionaire Republican donor who has come under scrutiny for lavishing expensive gifts on Thomas that the justice failed to disclose.

Three months later, in his first 5th Circuit opinion (a dissent), Ho defended the right of individuals, including billionaires like Crow, to spend as much money on campaigns as they like. The case involved a voter-enacted contribution limit for Austin City Council races, and Ho aligned himself with wealthy donors against the specter of regulation, arguing that as “government grows larger,” fighting back with unlimited political spending “becomes a human necessity.” Ho’s dissent—which also claimed that the modern federal government would be “unrecognizable” to the founders and that the Supreme Court ruling upholding the Affordable Care Act was wrongly decided—made amply clear what kind of Supreme Court justice he would be.

Ho has sent many such signals. In 2022, he asserted in a concurring opinion that the Supreme Court should revive its decision in the 1905 case of Lochner v. New York, which the court had since overturned. While he framed his argument as pro-labor, the Lochner ruling had struck down a law that protected bakers from being forced to work more than 60 hours a week, ushering in decades of broader worker exploitation. Ho also has made clear that he’s vociferously against abortion, which he has called a “moral tragedy,” and has held that the Constitution guarantees Catholic clergy the right to bury fetal remains against the wishes of the would-be parents.

In 2023, when the 5th Circuit Court of Appeals narrowed Kacsmaryk’s mifepristone ruling, allowing the drug to remain on shelves, Ho wrote he would have fully blocked access. Perhaps most alarming was his proposed theory for why a handful of anti-abortion doctors could bring the suit in the first place. It is a foundational principle of law that a plaintiff cannot merely be a concerned bystander. They must have skin in the game, or standing: an actual or likely injury that a court could remedy. Both Kacsmaryk and the 5th Circuit had accepted the doctors’ dubious claim that they might one day encounter a patient suffering adverse effects from mifepristone and be obliged to help that person in violation of their religious beliefs—despite federal conscience laws that ensure they wouldn’t have to.

In June, the Supreme Court rejected that argument, ruling 9–0 that the mifepristone plaintiffs lacked standing, with Justice Brett Kavanaugh patiently explaining, as though lecturing a first-year law student, that the doctors were not suitable plaintiffs.

Ho had not only supported the rejected ruling, but in a concurrence had gone further to construct a standing doctrine for physicians in abortion cases. “Doctors delight in working with their unborn patients,” he wrote, “and experience an aesthetic injury when they are aborted”—a dystopian perversion of the doctor-patient relationship. Graves worked with Ho about 20 years ago on the Senate Judiciary Committee, and remembers him as “ambitious” and “transactional.” But the idea that a woman must remain pregnant for her physician’s viewing pleasure “shows the veneer is off,” she says. “He’s untrammeled by common sense, he’s untrammeled by restraint. He just thinks that he in that role as a federal judge with a lifetime job can do whatever he wants.”

This past July, Ho went where none of his colleagues had dared. In a concurrence in which he approved of the floating barrier that Abbott, now Texas’ governor, had placed in the Rio Grande to thwart migrant crossings, Ho codified the MAGA rhetoric equating immigration with a hostile invasion. Seven judges warned in a dissent that Ho’s theory “would enable Governor Abbott to engage in acts of war in perpetuity.”

Some of Ho’s boldest politicking happens outside the court. At Georgetown Law in 2022, he defended Ilya Shapiro, a professor the school had put on leave for tweeting, in the runup to Justice Jackson’s Supreme Court nomination, that Biden would select a “lesser black woman.” (“If Ilya Shapiro is deserving of cancellation, then you should go ahead and cancel me, too,” Ho proclaimed.) Seven months later, he announced he would no longer hire clerks from Yale Law School after students there disrupted conservative speakers. In 2023, Ho expanded his no-hire list after Stanford law students clashed with Duncan, his 5th Circuit colleague, during a campus lecture. Earlier this year, having popularized a broader clerkship boycott phenomenon, he joined 12 other Trump-appointed judges in announcing they would no longer hire clerks from Columbia Law School in light of pro-Palestinian campus protests.

As for judge-shopping, Ho defends the practice: “This isn’t about forum-shopping. It’s about forum-shaming,” he argued in an April speech to a local bar association in Texas. “It’s about shaming judges.”

Ho’s behavior on and off the bench has raised his profile and made his politics crystal clear. “He’s citing things like Fox News or other kinds of conservative publications that you would not normally cite,” says one attorney, who, because they argue cases before the 5th Circuit, asked not to be named. “No one else writes in that way.”

Ho already was on Trump’s 2020 Supreme Court shortlist. Then, last year, the extremist group American Family Association Action, which seeks to infuse the judiciary with biblical views, placed him on a list of six Supreme Court picks for a second Trump term.

Oldham, the other potential Supreme Court contender, has likewise made his mark with opinions that push the law into uncharted waters. But it may be his pre-judicial government service that’s most revealing. When Abbott invited Oldham to Texas to join the solicitor general’s office, Oldham considered it to be “God opening a door.” Oldham and Abbott would go beyond arguing that specific actions of the Obama administration were illegal to assert that the existence of the very agencies implementing the policies was unconstitutional. When Abbott became governor in 2015, Oldham joined him as a top legal adviser, and, according to the Texas Tribune, played a significant role in crafting Abbott’s so-called Texas Plan. Abbott envisioned a convention of states, the first since the founders gathered in Philadelphia, to adopt nine constitutional amendments. In some respects, the proposed changes would set America back to pre-1787, when the fledgling republic floundered under the Articles of Confederation, depriving the federal government not only of powers created in response to the Civil War, but also some put in place by the original framers.

In a 2016 speech hosted by the University of Chicago chapter of the Federalist Society, Oldham harped on the “illegitimacy” of the “administrative state.” He also made a villain out of James Landis, a largely forgotten Harvard Law School dean who had helped create and went on to run the SEC.

Landis, Oldham said, was the “architect” and “godfather” of modern regulation, who viewed the Constitution as an “inconvenience” to be discarded. To restore its integrity, Oldham described a “Route A” wherein Congress amends the Constitution to roll back regulatory agencies and grant states new powers. Given Congress’ disinclination to do so, Oldham urged the adoption of “Route B,” the Texas Plan’s convention of states. Unmentioned was what might be called Route C: judges taking it upon themselves to remake the balance of power between the federal government and the states.

During his Senate confirmation hearings for the 5th Circuit, Oldham distanced himself from this work, claiming he was simply representing Abbott, his client. “My perspective as an advocate has no bearing on my perspective as a jurist,” he told the Judiciary Committee. But on the bench, Oldham has essentially copied and pasted the grievances that animated the Texas Plan into judicial opinions. In a 2021 case involving constitutional challenges to SEC authority, Oldham returned to Landis, claiming he was heir to a German intellectual lineage, which, Oldham argued, made modern administrative agencies a foreign import fundamentally at odds with the Constitution’s separation of powers. As he had done previously in a state publication promoting the Texas Plan, Oldham quoted a 2014 book by Columbia law professor Philip Hamburger titled Is Administrative Law Unlawful? (His opinion failed to mention that Hamburger leads the nonprofit that had brought the case under review.) Nicholas Bagley, a professor of administrative law at the University of Michigan, describes the “Germanic trope” as a right-wing “fever dream,” and deems Oldham’s citation a “strategy to give academic respectability to fringe legal views.”

Two years later, Oldham heard another challenge to SEC power in which he and his colleagues, squarely at odds with Supreme Court precedent, ordered the agency to enforce some of its actions in federal court rather than before its in-house judges. The judge who wrote the majority opinion quoted Oldham’s earlier SEC opinion, including some of his writing on Landis. In June, the Supreme Court upheld the ruling, casting doubt on the enforcement authority of dozens of agencies. (Remember Route C?)

An attorney who attended Harvard Law School alongside Oldham recognizes his certitude. “He sees himself as an intellectual and he knows he’s very smart,” says the classmate, who asked for anonymity. “And it doesn’t matter if there’s all this precedent that says something else.”

The 5th circuit has been radically transformed by Trump’s appointees, who make up more than a third of the court. But the change wasn’t always smooth. In a recent Texas immigration case, for example, Oldham was at odds with then-Chief Judge Priscilla Richman, who, when first nominated by President George W. Bush in 2001, was viewed as such an extremist that Democrats blocked her appointment. (Her nomination succeeded during Bush’s second term.) While some of the Bush and Reagan appointees regularly join the Trump judges in decisions that push legal boundaries, others have resisted—sometimes publicly. The divide mirrors the broader struggle between old-school Republicans and Trump diehards. And, just as Trump has taken over his party, his judicial appointees are prevailing.

One case in particular lays bare the court’s transformation. At the height of the pandemic, United Airlines announced an employee vaccine mandate. Several workers sued, arguing that getting the shot would violate their religious beliefs. They asked the court for protection under Title VII of the Civil Rights Act. That might sound like a normal request, but legally, it’s cuckoo. Title VII relief comes in the form of damages after a religious violation has occurred. Yet Oldham and another judge found that the courts could grant relief and keep the policy from taking effect. “It totally blew my mind,” says the attorney who practices in the 5th Circuit. Not long ago, it “would have been laughed out of court.”

But it was a dissent in the case that really got people’s attention. Judge Jerry Smith, a conservative Reagan appointee to the circuit, had once hired Ho as his clerk. Smith was also there at Crow’s library for Ho’s swearing-in. But now he warned that nothing, “especially not the law, will thwart this majority’s plans,” adding that Oldham had helped unleash an “orgy of jurisprudential violence.”

“By today’s ruling, the Good Ship Fifth Circuit is afire,” Smith continued. “We need all hands on deck.”

His dissent, perhaps unintentionally, struck the same note as the court’s left-leaning critics: The issue isn’t so much that the 5th Circuit reaches ultraconservative conclusions, but that it breaks all the rules to get there. The last few years have seen the court seize on aggressive procedural maneuvers that give its judges more power. Its expansive view of standing is one key area where, as Vladeck sarcastically puts it, the 5th Circuit has “really covered itself in glory,” with judges repeatedly ignoring precedent so they can rule on cases that excite them. In recent years, the Supreme Court has reversed the 5th Circuit’s decisions on standing five times in politically charged cases, twice unanimously. But the lower court “keeps repeating the same errors,” Vladeck says. “The point is not that they’re getting these things wrong. The point is that they are getting them wrong in a way that is making it possible for them to actually interject themselves even deeper into our social and political debates.”

The 5th Circuit wasn’t always reactionary. Until 1981, its jurisdiction also included Alabama, Georgia, and Florida, and under the leadership of Republican-appointed judges, the court spent the 1960s desegregating the South in the face of violent white supremacism. One of the judges was an Eisenhower Republican felicitously named John Minor Wisdom, for whom the court’s majestic building in downtown New Orleans was dedicated in 1994.

“The 5th Circuit and the US Supreme Court were instrumental in this period of American history where rights were finally actually respected by the federal courts,” says Graves, of True North Research. “In reaction to that, there’s been a concerted effort to take over those courts and put people on the courts who have this fundamental hostility to civil rights and the power of government to protect individual freedoms.”

The transition began with increasingly conservative appointments under President Richard Nixon. But it ramped up under Obama’s tenure, as Senate Republicans stymied many of his judicial nominations, leaving him, in eight years, able to make only three 5th Circuit appointments. Texas’ senators, Cornyn and Cruz, blocked all but one appointment to the court from their state, allowing Trump to tap Ho and another Texan as soon as he entered office. Ultimately, Trump made six appointments in four years.

The decisions now coming out of the Wisdom courthouse are increasingly hostile to its namesake’s legacy. During the 1960s, the court embraced Brown v. Board of Education, which ended the constitutionality of school segregation. At his 2018 confirmation hearing, Oldham refused to say whether Brown was rightly decided.

Justice Thomas spoke that same year at a Dallas Federalist Society event, where he recounted something his former clerk and newly appointed 5th Circuit judge, Ho, had said as he was finishing his clerkship. “‘You know, when I came to this job, I thought it was going to be very complicated,’” Thomas recalled Ho saying. “‘But you know, it’s pretty straightforward, isn’t it?’”

“I think it is,” Thomas concurred, “if you start at the right place.”

That’s a point that could be made of Ho, Oldham, and many of their 5th Circuit colleagues. It’s no mystery where they are headed once you know where they started from.