1 00:00:01,680 --> 00:00:05,680 Speaker 1: Cold Media. 2 00:00:06,559 --> 00:00:09,280 Speaker 2: I'm Michael Phillips, an historian and the author of a 3 00:00:09,360 --> 00:00:13,239 Speaker 2: book about racism in Dallas called White Metropolis, and the 4 00:00:13,280 --> 00:00:16,880 Speaker 2: co author, with longtime journalist Betsy Freoff, of the history 5 00:00:16,920 --> 00:00:19,919 Speaker 2: of eugenics in Texas called The Purifying Knife. 6 00:00:20,120 --> 00:00:23,160 Speaker 3: I'm Stephen Monchelli. I'm a journalist who specializes in covering 7 00:00:23,160 --> 00:00:26,360 Speaker 3: political extremism and far right internet culture for The Texas Observer, 8 00:00:26,760 --> 00:00:30,440 Speaker 3: The Barbed Wire and other publications. Today we'll be talking 9 00:00:30,520 --> 00:00:33,479 Speaker 3: about the Fifth Circuit, and we'll start with a man 10 00:00:33,560 --> 00:00:36,519 Speaker 3: named James Hope, who, on what might have been the 11 00:00:36,560 --> 00:00:39,400 Speaker 3: biggest day of his judicial career so far, couldn't have 12 00:00:39,479 --> 00:00:41,040 Speaker 3: picked a creepier setting. 13 00:00:41,600 --> 00:00:44,960 Speaker 2: The fifty two year old's legal career has rocketed forward 14 00:00:45,040 --> 00:00:50,040 Speaker 2: at light speed. Born in Taiwan and a graduate of Stanford, 15 00:00:50,440 --> 00:00:52,440 Speaker 2: he signed up as an attorney for the white shoe 16 00:00:52,520 --> 00:00:56,640 Speaker 2: law firm Gibson Dunn in California in two thousand. At 17 00:00:56,680 --> 00:01:00,000 Speaker 2: age twenty seven. He joined a high powered legal team 18 00:01:00,000 --> 00:01:04,720 Speaker 2: and that forever shaped the history of the United States. 19 00:01:04,720 --> 00:01:08,840 Speaker 4: From NBC News in Washington, this is Meet the Press 20 00:01:09,200 --> 00:01:10,200 Speaker 4: with Tim Russer. 21 00:01:11,600 --> 00:01:16,120 Speaker 3: Our issues This Sunday, thirty six days after the election. 22 00:01:16,720 --> 00:01:20,039 Speaker 2: Al Gore ends his campaign. For the sake of our 23 00:01:20,160 --> 00:01:22,680 Speaker 2: unity as a people and the strength of our democracy, 24 00:01:23,319 --> 00:01:25,800 Speaker 2: I offer my concession. George W. 25 00:01:25,880 --> 00:01:30,160 Speaker 5: Bush will be the forty third President of the United States. 26 00:01:30,400 --> 00:01:32,920 Speaker 1: I'm thankful to the American people for the great privilege 27 00:01:32,920 --> 00:01:36,360 Speaker 1: of being able to serve as your next president. 28 00:01:37,760 --> 00:01:42,039 Speaker 3: Young and almost entirely unknown outside of legal circles, James 29 00:01:42,040 --> 00:01:44,480 Speaker 3: Hoe joined some of the most famous conservative lawyers in 30 00:01:44,520 --> 00:01:46,880 Speaker 3: the country in the year two thousand to convince the 31 00:01:46,959 --> 00:01:50,680 Speaker 3: United States Supreme Court to stop the hotly contested presidential 32 00:01:50,760 --> 00:01:54,640 Speaker 3: vote count in Florida. That move elevated President George W. 33 00:01:54,720 --> 00:01:55,880 Speaker 2: Bush to the White House. 34 00:01:56,800 --> 00:01:59,360 Speaker 3: In this effort, James Hoe rubbed shoulders with right wing 35 00:01:59,440 --> 00:02:02,680 Speaker 3: luminaries like the man who in five years would be 36 00:02:02,960 --> 00:02:05,840 Speaker 3: the Chief Justice of the Supreme Court, John Roberts. 37 00:02:06,680 --> 00:02:11,480 Speaker 2: Hoe rocketed to judicial superstardom. He clerked for Supreme Court 38 00:02:11,639 --> 00:02:14,960 Speaker 2: Justice Clarence Thomas for a couple of years, then from 39 00:02:15,000 --> 00:02:18,120 Speaker 2: two thousand and eight to twenty ten, he succeeded Ted 40 00:02:18,240 --> 00:02:22,800 Speaker 2: Cruz as Solicitor General of Texas. There he handled appeals 41 00:02:22,840 --> 00:02:25,119 Speaker 2: filed by the state in cases heard by the state 42 00:02:25,200 --> 00:02:28,760 Speaker 2: Supreme Court and the U s Supreme Court. On January four, 43 00:02:28,880 --> 00:02:32,480 Speaker 2: twenty eighteen, Hoe celebrated his next rapid climb up the 44 00:02:32,560 --> 00:02:35,799 Speaker 2: judicial ladder when he has sworn as a newish judge 45 00:02:35,840 --> 00:02:38,800 Speaker 2: on the United States Fifth Circuit Court of Appeals, which 46 00:02:38,840 --> 00:02:43,800 Speaker 2: oversees federal cases that are originate in Texas, Mississippi, and Louisiana. 47 00:02:44,440 --> 00:02:47,639 Speaker 3: Hooe's swearing in ceremony took place at the mansion of 48 00:02:47,720 --> 00:02:51,640 Speaker 3: Dallas real estate billionaire Harlan Crowe. You've probably heard that 49 00:02:51,720 --> 00:02:54,760 Speaker 3: name before because Crow has made news with the revelation 50 00:02:54,919 --> 00:02:58,440 Speaker 3: that he lavished hundreds of thousands of dollars in gifts 51 00:02:58,480 --> 00:03:02,040 Speaker 3: and favors on Supreme Court Judge Just Clarence Thomas, including 52 00:03:02,080 --> 00:03:05,160 Speaker 3: cruises to Indonesian islands on the businessman's one hundred and 53 00:03:05,200 --> 00:03:08,080 Speaker 3: sixty two foot super yacht and a one hundred and 54 00:03:08,160 --> 00:03:11,760 Speaker 3: nineteen thousand dollars bible that once belonged to leading abolitionist 55 00:03:12,000 --> 00:03:15,880 Speaker 3: Frederick Douglas. Crowe flew Thomas to Dallas on his private 56 00:03:15,919 --> 00:03:18,600 Speaker 3: jet so the justice could swear in his former clerk. 57 00:03:19,200 --> 00:03:23,840 Speaker 3: The surroundings included Crowe's unnerving souvenirs, once described on the 58 00:03:23,880 --> 00:03:25,840 Speaker 3: program Inside Edition. 59 00:03:26,200 --> 00:03:29,600 Speaker 5: Questions are being raised today about Supreme Court Justice Clarence 60 00:03:29,600 --> 00:03:34,320 Speaker 5: Thomas's friendship with a billionaire who collects Nazi memorabilia. Published 61 00:03:34,320 --> 00:03:39,320 Speaker 5: reports say Dallas tycoon Harlan Crowe's controversial collection includes Hitler's 62 00:03:39,320 --> 00:03:44,120 Speaker 5: notorious autobiography Mind Komf, signed by Hitler, oil paintings by 63 00:03:44,160 --> 00:03:48,280 Speaker 5: Hitler and Lennon Napkins embroidered with the Nazi swastika. The 64 00:03:48,320 --> 00:03:51,560 Speaker 5: collection is housed at Crowe's mansion in Dallas. I can't 65 00:03:51,560 --> 00:03:54,880 Speaker 5: get over the collection of Nazi memorabilia, said one guest 66 00:03:54,920 --> 00:03:57,400 Speaker 5: who saw the Nazi treasure trove. You sort of just 67 00:03:57,560 --> 00:03:59,720 Speaker 5: gasp when you walk into the room. 68 00:04:00,400 --> 00:04:03,800 Speaker 2: The estate also includes what Crow has called the Garden 69 00:04:03,840 --> 00:04:08,560 Speaker 2: of Evil, a collection of imposing statues of past authoritarian 70 00:04:08,640 --> 00:04:14,600 Speaker 2: leaders like Vladimir Lenin, Joseph Stalin, Mao Zedung, Nikolai Chacchescu, 71 00:04:15,040 --> 00:04:19,360 Speaker 2: the eccentric Romanian tyrant violently deposed in nineteen eighty nine, 72 00:04:19,760 --> 00:04:22,920 Speaker 2: as well as a bust of Gavrilla Prinsep, the Bosnian 73 00:04:23,000 --> 00:04:26,880 Speaker 2: Serb nationalist who triggered World War One with his assassination 74 00:04:27,520 --> 00:04:31,719 Speaker 2: of Austrian Archduke Franz Ferdinand. Crow claims that his clutch 75 00:04:31,839 --> 00:04:34,920 Speaker 2: is somehow a statement of his hatred for both communism 76 00:04:35,000 --> 00:04:40,200 Speaker 2: and fascism. The creepy artwork perhaps foreshadowed Hoe's ominous career 77 00:04:40,360 --> 00:04:43,119 Speaker 2: in the Fifth Circuit Court of Appeals. On that bench, 78 00:04:43,160 --> 00:04:46,680 Speaker 2: he has become infamous for weirdly written and extreme opinions 79 00:04:46,880 --> 00:04:48,920 Speaker 2: in which he has suggested that the children of migrants 80 00:04:48,960 --> 00:04:51,919 Speaker 2: might not be eligible for birthright citizenship because the country 81 00:04:52,000 --> 00:04:56,360 Speaker 2: is being quote invaded, and that abortion actually somehow injures 82 00:04:56,400 --> 00:05:01,000 Speaker 2: doctors because they are denied the intense pleasure of delivering babies. 83 00:05:01,680 --> 00:05:03,960 Speaker 2: Those antics might lead him to one day occupy a 84 00:05:03,960 --> 00:05:06,920 Speaker 2: seat on the United States Supreme Court, potentially succeeding Thomas 85 00:05:07,040 --> 00:05:10,400 Speaker 2: or Samuel Alito, the two oldest justices on the nation's 86 00:05:10,480 --> 00:05:13,560 Speaker 2: highest bench. In this episode, we'll look at the career 87 00:05:13,680 --> 00:05:17,640 Speaker 2: of Judge James Hoe, his alarming right wing judicial activism, 88 00:05:18,040 --> 00:05:20,920 Speaker 2: and the strange history of the Fifth Circuit Court of Appeals, 89 00:05:21,279 --> 00:05:24,360 Speaker 2: which since the Reagan administration has transformed for one of 90 00:05:24,360 --> 00:05:27,640 Speaker 2: the most liberal judicial bodies in the country too, perhaps 91 00:05:27,640 --> 00:05:29,520 Speaker 2: the scariest court in America. 92 00:05:29,880 --> 00:05:32,919 Speaker 3: Given its current reactionary reputation. It's a bit ironic. The 93 00:05:32,960 --> 00:05:36,039 Speaker 3: Fifth Circuit Court convenes in a New Orleans Courthouse named 94 00:05:36,080 --> 00:05:40,320 Speaker 3: after John Minor Wisdom, a New Orleans native who formed 95 00:05:40,320 --> 00:05:43,360 Speaker 3: a critical part of a quartet of liberal judges known 96 00:05:43,400 --> 00:05:46,480 Speaker 3: simply as the Four who in the nineteen fifties and 97 00:05:46,600 --> 00:05:51,000 Speaker 3: nineteen sixties issued a series of revolutionary rulings that advanced 98 00:05:51,000 --> 00:05:55,839 Speaker 3: the civil rights movement. President Dwight Eisenhower pointed Wisdom to 99 00:05:55,880 --> 00:05:59,080 Speaker 3: the bench in nineteen fifty seven. He quickly formed an alliance 100 00:05:59,040 --> 00:06:00,920 Speaker 3: with three other liberal judge is on the Fifth Circuit, 101 00:06:01,400 --> 00:06:04,640 Speaker 3: Albert P. Tuttle of Georgia, John R. Brown of Texas, 102 00:06:05,080 --> 00:06:09,120 Speaker 3: and Richard T. Rivis of Alabama. Rivers was the only 103 00:06:09,160 --> 00:06:11,599 Speaker 3: Democrat on the squad that came to be known as 104 00:06:11,680 --> 00:06:15,640 Speaker 3: the Fifth forour these liberals typically prevailed over the conservatives 105 00:06:15,800 --> 00:06:18,359 Speaker 3: serving on the Fifth Circuit, and at that point, the 106 00:06:18,360 --> 00:06:21,080 Speaker 3: Fifth Circuit heard cases from states that spread across the 107 00:06:21,080 --> 00:06:26,120 Speaker 3: core of the one time Confederacy, including Louisiana, Florida, Alabama, Mississippi, Texas, 108 00:06:26,160 --> 00:06:29,320 Speaker 3: and Georgia. This placed the Fifth boar on the front 109 00:06:29,360 --> 00:06:32,480 Speaker 3: lines of the civil rights struggle. In nineteen fifty eight, 110 00:06:32,880 --> 00:06:36,200 Speaker 3: the Fifth Circuit began shipping away at Jim Crow. The 111 00:06:36,240 --> 00:06:39,240 Speaker 3: court heard the case of Joe Dorsey, Junior of New 112 00:06:39,320 --> 00:06:43,599 Speaker 3: Orleans challenging the Louisiana law that outlawed matches between black 113 00:06:43,600 --> 00:06:48,279 Speaker 3: and white boxers. Wisdom wrote the majority opinion, which declared 114 00:06:48,279 --> 00:06:51,680 Speaker 3: such legislation made a mockery of the equal protection clause 115 00:06:51,720 --> 00:06:56,400 Speaker 3: of the Fourteenth Amendment to the United States Constitution. That opinion, 116 00:06:56,920 --> 00:06:59,719 Speaker 3: like many Wisdom wrote, would be upheld the following year 117 00:06:59,720 --> 00:07:02,479 Speaker 3: by the Supreme Court that was presided over by Chief 118 00:07:02,640 --> 00:07:07,520 Speaker 3: Justice Earl Warren. Louisiana integrated boxing matches, but for years 119 00:07:07,560 --> 00:07:12,400 Speaker 3: outside the ring, the arenas divided into black and white seating. 120 00:07:13,440 --> 00:07:16,440 Speaker 3: In the coming years, the Fifth Circuit forced Saint Helen 121 00:07:16,480 --> 00:07:19,640 Speaker 3: Parrish and Louisiana to reopen their schools after that school 122 00:07:19,640 --> 00:07:23,320 Speaker 3: board voted to close all campuses to prevent integration. The 123 00:07:23,320 --> 00:07:26,400 Speaker 3: Fifth Circuit Court ordered the University of Mississippi to admit 124 00:07:26,440 --> 00:07:30,600 Speaker 3: an African American student, James Meredith. In his opinion, Wisdom 125 00:07:30,640 --> 00:07:34,040 Speaker 3: wrote that Ole miss as it's known, had engaged in 126 00:07:34,120 --> 00:07:39,560 Speaker 3: a carefully calculated campaign of delay, harassment, and masterly inactivity. 127 00:07:40,240 --> 00:07:43,320 Speaker 3: Riots broke out as federal troops had to enforce the order. 128 00:07:48,840 --> 00:07:49,400 Speaker 5: James H. 129 00:07:49,520 --> 00:07:53,160 Speaker 6: Meredith is formerly enrolled at the University of Mississippi, ending 130 00:07:53,200 --> 00:07:56,880 Speaker 6: one chapter in the federal government's efforts to desegregate the university. 131 00:07:57,320 --> 00:08:00,240 Speaker 6: The town of Oxford is an armed can following ads 132 00:08:00,280 --> 00:08:03,080 Speaker 6: that accompany the registration of the first Negro in the 133 00:08:03,200 --> 00:08:06,400 Speaker 6: university's one hundred and eighteen year history. Much of this 134 00:08:06,480 --> 00:08:10,600 Speaker 6: film record was destroyed when our cameraman, Gordon Yoder, was attacked, 135 00:08:10,880 --> 00:08:13,560 Speaker 6: but he did salvage pictures of Governor Ross Barnett at 136 00:08:13,600 --> 00:08:16,680 Speaker 6: the scene. The governor fought the court order long and 137 00:08:16,760 --> 00:08:20,920 Speaker 6: bitterly before modifying his stad saying Mississippi was overpowered by 138 00:08:20,920 --> 00:08:28,160 Speaker 6: the federal government. President Kennedy appealed to the students and 139 00:08:28,200 --> 00:08:30,560 Speaker 6: to the people of the state to comply peacefully with 140 00:08:30,640 --> 00:08:33,360 Speaker 6: the law and bring the crisis to an end. Even 141 00:08:33,400 --> 00:08:35,800 Speaker 6: as he talked, riots were breaking out in Oxford. 142 00:08:37,440 --> 00:08:40,400 Speaker 7: Americans are free, in sure to disagree with the law, 143 00:08:41,080 --> 00:08:44,720 Speaker 7: but not to disobey it. For any government of laws 144 00:08:44,760 --> 00:08:49,040 Speaker 7: and not of men, No man, however prominent. 145 00:08:49,160 --> 00:08:53,240 Speaker 2: Or powerful, and no mob, however. 146 00:08:53,040 --> 00:08:58,120 Speaker 7: Unruly or boisterous, is entitled to defy a court of law. 147 00:08:59,120 --> 00:09:01,680 Speaker 2: In nineteen sixty v three of the Fifth Circuit ordered 148 00:09:01,720 --> 00:09:06,560 Speaker 2: the desegregation of community centers cultural centers, playgrounds, and public parks. 149 00:09:07,160 --> 00:09:10,400 Speaker 2: The next year, the court ruled the jury selection system 150 00:09:10,679 --> 00:09:14,320 Speaker 2: in Orleans Paris, where as Wisdom noted, no black had 151 00:09:14,360 --> 00:09:17,360 Speaker 2: ever set on a grand jury or trial jury panel, 152 00:09:17,720 --> 00:09:21,440 Speaker 2: violated the Constitution. Two years after that, the Fifth Circuit 153 00:09:21,559 --> 00:09:26,240 Speaker 2: overturned Louisiana's photo registration literacy tests, which required as citizen 154 00:09:26,280 --> 00:09:29,320 Speaker 2: to pass, in the judgment of white officials, a written 155 00:09:29,360 --> 00:09:34,560 Speaker 2: test on the Constitution. Such laws had long disenfranchised impoverished 156 00:09:34,600 --> 00:09:36,160 Speaker 2: African Americans and whites. 157 00:09:36,840 --> 00:09:40,880 Speaker 3: Perhaps Wisdom's most significant opinion came with the nineteen sixty 158 00:09:40,920 --> 00:09:44,320 Speaker 3: eight United States v. Jefferson case, which blocked states from 159 00:09:44,400 --> 00:09:47,440 Speaker 3: avoiding compliance with the Brown v. Board of Education decision 160 00:09:47,679 --> 00:09:50,920 Speaker 3: by setting up so called quote school choice plans in 161 00:09:50,960 --> 00:09:54,200 Speaker 3: which parents allegedly freely chose to send their children to 162 00:09:54,440 --> 00:09:55,480 Speaker 3: segregated schools. 163 00:09:55,920 --> 00:10:01,680 Speaker 1: Wisdom wrote, the Constitution is both color blind and conscious. 164 00:10:02,480 --> 00:10:07,439 Speaker 1: To avoid conflict with the equal Protection clause, a classification 165 00:10:07,640 --> 00:10:12,199 Speaker 1: that denies a benefit, causes harm, or imposes a burden 166 00:10:12,640 --> 00:10:16,520 Speaker 1: must not be based on race. In that sense, the 167 00:10:16,559 --> 00:10:21,400 Speaker 1: Constitution is color blind, but the Constitution is color conscious 168 00:10:21,800 --> 00:10:27,280 Speaker 1: to prevent discrimination from being perpetuated and to undo the 169 00:10:27,320 --> 00:10:29,560 Speaker 1: effects of past discrimination. 170 00:10:30,440 --> 00:10:33,839 Speaker 2: Quoting a phrase that would later ignite fierce white backlash 171 00:10:33,880 --> 00:10:38,040 Speaker 2: against civil rights North and South, Wisdom said school systems 172 00:10:38,080 --> 00:10:41,600 Speaker 2: needed to move beyond ostensibly not discriminating and to take 173 00:10:41,720 --> 00:10:46,760 Speaker 2: quote affirmative action to bring about a unitary, non racial system. 174 00:10:47,360 --> 00:10:50,760 Speaker 2: That phrase would provide a legal foundation for school bussing 175 00:10:51,080 --> 00:10:55,000 Speaker 2: as a means of genuinely integrating schools, and also introduce 176 00:10:55,080 --> 00:10:59,400 Speaker 2: the concept of affirmative action hiring practices in other stubborn 177 00:10:59,400 --> 00:11:01,080 Speaker 2: aspects of racial exclusion. 178 00:11:01,679 --> 00:11:04,640 Speaker 3: The Fifth Circuit's record of judicial progressivism continued through the 179 00:11:04,720 --> 00:11:08,120 Speaker 3: nineteen seventies. A nineteen seventy six decision by the Fifth Circuit, 180 00:11:08,160 --> 00:11:11,680 Speaker 3: for instance, required public colleges and universities in Texas to 181 00:11:11,760 --> 00:11:16,520 Speaker 3: recognize gay student organizations. Meanwhile, moderate Republicans tried to persuade 182 00:11:16,559 --> 00:11:20,560 Speaker 3: Richard Nixon to nominate Wisdom for the United States Supreme Court. However, 183 00:11:20,640 --> 00:11:23,720 Speaker 3: Attorney General John Mitchell, who later went to prison for 184 00:11:23,720 --> 00:11:27,520 Speaker 3: his role in the Watergate scandal, squashed the idea. He 185 00:11:27,559 --> 00:11:30,520 Speaker 3: complained that the judge was a damn left winger who 186 00:11:30,559 --> 00:11:33,760 Speaker 3: would specially be as bad as the famously liberal Chief 187 00:11:33,920 --> 00:11:38,040 Speaker 3: Justice Warren. President Clinton would give was then the Presidential 188 00:11:38,080 --> 00:11:41,400 Speaker 3: Medal of Freedom in nineteen ninety three. Wisdom died six 189 00:11:41,480 --> 00:11:45,880 Speaker 3: years later. If he miraculously returned, Wisdom would not recognize 190 00:11:45,920 --> 00:11:47,600 Speaker 3: the appeals court that he spent so much of his 191 00:11:47,679 --> 00:11:50,440 Speaker 3: life serving. We'll talk about the transformation of the Fifth 192 00:11:50,440 --> 00:11:53,640 Speaker 3: Circuit of Appeals, the extreme and disturbing decisions that has 193 00:11:53,679 --> 00:11:55,880 Speaker 3: made since the start of the Trump era, and the 194 00:11:55,960 --> 00:11:59,040 Speaker 3: career of one of that court's most infamous judges when 195 00:11:59,040 --> 00:12:11,040 Speaker 3: we come back from our hope fully less infamous sponsors. 196 00:12:12,720 --> 00:12:16,880 Speaker 3: In nineteen eighty one, the federal judiciary was reorganized. The 197 00:12:16,880 --> 00:12:20,520 Speaker 3: Fifth Circuit Court now heard appeals only from Mississippi, Louisiana, 198 00:12:20,559 --> 00:12:24,319 Speaker 3: and Texas. A new eleventh Circuit court now here's cases 199 00:12:24,320 --> 00:12:27,960 Speaker 3: from Alabama, Georgia, and Florida. We should provide a hopefully 200 00:12:28,000 --> 00:12:31,760 Speaker 3: brief civics lesson here. The Fifth Court consists of seventeen 201 00:12:31,840 --> 00:12:34,040 Speaker 3: active judges and nine senior judges. 202 00:12:34,600 --> 00:12:35,680 Speaker 2: When a side. 203 00:12:35,640 --> 00:12:37,880 Speaker 3: Loses a case in a federal district court, they can 204 00:12:37,920 --> 00:12:40,280 Speaker 3: appeal to a circuit court, where the case is heard 205 00:12:40,280 --> 00:12:43,080 Speaker 3: by a three judge panel. In some cases, if one 206 00:12:43,120 --> 00:12:45,199 Speaker 3: side disagrees with the judgment of the panel, they may 207 00:12:45,240 --> 00:12:47,880 Speaker 3: appeal the decision to the full judicial Court. 208 00:12:48,520 --> 00:12:52,400 Speaker 2: Among the act of judges, those appointed by Republican presidents 209 00:12:52,440 --> 00:12:55,920 Speaker 2: outnumber those appointed by Democrats by a margin of twelve 210 00:12:56,000 --> 00:12:59,160 Speaker 2: to five. Donald Trump applented more than a third of 211 00:12:59,200 --> 00:13:03,440 Speaker 2: these judges, six in all, each of course, could serve 212 00:13:03,520 --> 00:13:06,080 Speaker 2: on the court for the rest of their life. The 213 00:13:06,080 --> 00:13:09,400 Speaker 2: Fifth Circuit also has eight senior judges who are semi 214 00:13:09,440 --> 00:13:13,560 Speaker 2: retired but preside over a limited number of cases. Six 215 00:13:13,640 --> 00:13:17,400 Speaker 2: of them were also appointed by Republican presidents, stretching back 216 00:13:17,440 --> 00:13:18,360 Speaker 2: to Ronald Reagan. 217 00:13:19,120 --> 00:13:22,960 Speaker 3: Even in that hyper conservative company, James Hoe has stood out. 218 00:13:23,640 --> 00:13:26,720 Speaker 3: Mike Davis, the president of the Pro Trump Article three Project, 219 00:13:27,160 --> 00:13:30,600 Speaker 3: a group dedicated to pushing federal courts further right, has said, 220 00:13:30,679 --> 00:13:35,200 Speaker 3: quote on every crucial but controversial legal issue, Jim Hoe 221 00:13:35,240 --> 00:13:37,240 Speaker 3: is constantly the tip of the spear. 222 00:13:38,240 --> 00:13:41,920 Speaker 2: It has been a cliche among the American right wingers 223 00:13:41,920 --> 00:13:44,800 Speaker 2: that liberal judges from the time of Franklin Roosevelt Lawan 224 00:13:45,320 --> 00:13:49,080 Speaker 2: had become judicial activists for abusing their positions on the 225 00:13:49,080 --> 00:13:53,440 Speaker 2: bench to advance their political agendas rather than impartially ruling 226 00:13:53,440 --> 00:13:59,000 Speaker 2: on the law. Calling balls and strikes. Hoe's open political advocacy, however, 227 00:13:59,080 --> 00:14:02,720 Speaker 2: has raised no LA arms for those saying presume advocates 228 00:14:02,720 --> 00:14:04,160 Speaker 2: for judicial neutrality. 229 00:14:04,920 --> 00:14:08,400 Speaker 3: While he served as Texas's Solicitor General, Hoe did pro 230 00:14:08,520 --> 00:14:12,120 Speaker 3: bono work for the First Liberty Institute, a Christian right 231 00:14:12,240 --> 00:14:16,480 Speaker 3: organization headquartered in Plano, Texas, just north of Dallas, that 232 00:14:16,600 --> 00:14:19,160 Speaker 3: won a case for a Washington State high school football 233 00:14:19,200 --> 00:14:22,520 Speaker 3: coach who was fired because he violated school policy by 234 00:14:22,600 --> 00:14:25,800 Speaker 3: leading his team in prayer after each game. The group 235 00:14:25,840 --> 00:14:29,240 Speaker 3: has also represented bakers who refused to make wedding cakes 236 00:14:29,320 --> 00:14:30,520 Speaker 3: for same sex couples. 237 00:14:31,120 --> 00:14:33,760 Speaker 2: As a judge, Hoe led a boycott of legal clerks 238 00:14:33,800 --> 00:14:37,760 Speaker 2: who graduated from Yale Law School to punish that institution 239 00:14:37,960 --> 00:14:42,680 Speaker 2: for its supposed leftist cancel culture and intolerance and conservative views. 240 00:14:43,400 --> 00:14:46,760 Speaker 2: During his speech to the far right Heritage Foundation, the 241 00:14:46,800 --> 00:14:50,680 Speaker 2: authors of Project twenty twenty five, Hoe ridiculed lawyers with 242 00:14:51,120 --> 00:14:56,440 Speaker 2: fancy credentials, fancy law schools, fancy clerkships, fancy law firms, 243 00:14:56,440 --> 00:15:00,560 Speaker 2: and government jobs. He claimed that issued liberal opinions for 244 00:15:00,600 --> 00:15:04,680 Speaker 2: no other purpose than winning popularity. Here young conservatives to 245 00:15:04,720 --> 00:15:09,040 Speaker 2: assert themselves against the sposed popularity of political correctness. 246 00:15:09,800 --> 00:15:11,840 Speaker 3: In addition to serving on the bench, Ho could be 247 00:15:11,880 --> 00:15:15,840 Speaker 3: considered an activist particularly on culture war issues like abortion. 248 00:15:16,520 --> 00:15:20,360 Speaker 3: He's condemned abortion as the quote immoral, tragic, and violent 249 00:15:20,400 --> 00:15:24,120 Speaker 3: taking of innocent human life. In twenty eighteen, he upheld 250 00:15:24,120 --> 00:15:26,600 Speaker 3: a Texas law that required the cremation or burial of 251 00:15:26,600 --> 00:15:30,680 Speaker 3: fetal remains a potentially costly burden for women receiving medical treatment, 252 00:15:31,360 --> 00:15:34,000 Speaker 3: and the state of Texas argued that any potential financial 253 00:15:34,000 --> 00:15:37,400 Speaker 3: burdens to women or clinics were irrelevant since the Texas 254 00:15:37,400 --> 00:15:39,880 Speaker 3: Conference of Catholic Bishops made a pledge to bury the 255 00:15:39,960 --> 00:15:43,280 Speaker 3: remains for low cost or even for free. Such a promise, 256 00:15:43,320 --> 00:15:45,160 Speaker 3: of course, was not legally binding. 257 00:15:45,680 --> 00:15:48,160 Speaker 2: A district court overturned the law, but Hoe, in the 258 00:15:48,160 --> 00:15:54,040 Speaker 2: fifths Circuit reinstated it, arguing that coarse burial protected religious 259 00:15:54,040 --> 00:15:58,880 Speaker 2: freedom of the Catholic bishops. Quote. The First Amendment expressly 260 00:15:59,000 --> 00:16:03,200 Speaker 2: guarantees the free exercise religion, including the right of bishops 261 00:16:03,200 --> 00:16:07,240 Speaker 2: to express their profound objection to the moral tragedy of abortion, 262 00:16:07,400 --> 00:16:12,000 Speaker 2: Hoe wrote, Texas still requires that fetal remains receive burial 263 00:16:12,240 --> 00:16:16,280 Speaker 2: or cremation. As we'll explain later, it's not only on 264 00:16:16,320 --> 00:16:18,400 Speaker 2: the issue of abortion that Hoe has staked out in 265 00:16:18,480 --> 00:16:22,760 Speaker 2: extreme position. In Man's First successions. The Fifth Circuit Court, 266 00:16:22,760 --> 00:16:25,760 Speaker 2: by an eight to seven vote, narrowly avoided overturning a 267 00:16:25,800 --> 00:16:31,000 Speaker 2: federal gun law that prohibited interstate gun sales. Hoe offered 268 00:16:31,000 --> 00:16:34,760 Speaker 2: a bitter descent, quoting his mentor Clarence Thomas and complaining 269 00:16:35,200 --> 00:16:38,400 Speaker 2: that in spite of the wide open access to firearms 270 00:16:38,440 --> 00:16:41,840 Speaker 2: in this country, the Second Amendment had become quote, a 271 00:16:41,960 --> 00:16:46,080 Speaker 2: second class right. In his opinion, how ridiculed advocates of 272 00:16:46,120 --> 00:16:50,520 Speaker 2: gun control is suffering from hoplophobia, the irrational fear of guns. 273 00:16:51,240 --> 00:16:54,920 Speaker 3: Hoe in the entire Fifth Circuit achieved national infamy after 274 00:16:54,960 --> 00:16:57,400 Speaker 3: the Supreme Court raised almost half a century of abortion 275 00:16:57,520 --> 00:17:00,320 Speaker 3: rights when it overturned the Roe Vwaid decision in the 276 00:17:00,360 --> 00:17:04,000 Speaker 3: Dobbs v. Women's Health Organization case on June twenty fourth, 277 00:17:04,119 --> 00:17:06,680 Speaker 3: twenty twenty two. A little more than a year after 278 00:17:06,720 --> 00:17:10,080 Speaker 3: that landmark case, on August sixteenth, twenty twenty three, the 279 00:17:10,080 --> 00:17:14,040 Speaker 3: Fifth Circuit upheld tightened access for women to mifipristone, the 280 00:17:14,160 --> 00:17:16,640 Speaker 3: so called abortion pill, which accounts for more than half 281 00:17:16,680 --> 00:17:20,240 Speaker 3: of all terminated pregnancies in the United States. Originally approved 282 00:17:20,240 --> 00:17:22,840 Speaker 3: by the Food and Drug Administration in two thousand, but 283 00:17:22,960 --> 00:17:26,240 Speaker 3: only for prescription by hospitals and other medical facilities. The 284 00:17:26,320 --> 00:17:29,520 Speaker 3: FDA expanded access to the medication in twenty sixteen and 285 00:17:29,560 --> 00:17:33,840 Speaker 3: gave doctors the right to directly prescribe mifipristone in response 286 00:17:33,880 --> 00:17:36,280 Speaker 3: to the COVID nineteen pandemic. Starting in twenty twenty one, 287 00:17:36,320 --> 00:17:39,520 Speaker 3: Women could receive it through the mail in twenty twenty. 288 00:17:39,520 --> 00:17:43,959 Speaker 2: For an anti abortion organization, the Alliance or Hippocratic Medicine 289 00:17:44,400 --> 00:17:48,960 Speaker 2: intentionally incorporated in twenty twenty two and Amarillo, which placed 290 00:17:48,960 --> 00:17:52,399 Speaker 2: it in the jurisdiction of the famously anti abortion Federal 291 00:17:52,440 --> 00:17:57,960 Speaker 2: District Judge Matthew J. Kasmeric, like Judge Hoe, Cosmeric, belonged 292 00:17:58,000 --> 00:18:01,320 Speaker 2: to the First Liberty Institute. While being considered for the 293 00:18:01,359 --> 00:18:05,119 Speaker 2: federal bench, he unsuccessfully tried to conceal his authorship of 294 00:18:05,200 --> 00:18:08,600 Speaker 2: legal articles on gay rights he thought might jeopardize approval 295 00:18:08,600 --> 00:18:12,440 Speaker 2: of his domination by the US Senate. Chasmeric has described 296 00:18:12,480 --> 00:18:16,200 Speaker 2: gay and trans people as mentally disordered. The Alliance for 297 00:18:16,280 --> 00:18:20,359 Speaker 2: Hippocratic Medicine filed student Caasmerics Court seeking to overturn the 298 00:18:20,400 --> 00:18:24,320 Speaker 2: FDA's approval of mythipriss Stone, even though decades of research 299 00:18:24,400 --> 00:18:28,680 Speaker 2: had demonstrated its safety and its effectiveness for treating Cushing syndrome, 300 00:18:28,720 --> 00:18:30,400 Speaker 2: a severe endocrine disorder. 301 00:18:31,280 --> 00:18:33,119 Speaker 3: None of the doctors in the Alliance had ever been 302 00:18:33,200 --> 00:18:34,960 Speaker 3: involved in a medical case in which the use of 303 00:18:34,960 --> 00:18:38,800 Speaker 3: mythipresstowne had been considered. In his opinion, Kasmeric showed his 304 00:18:38,880 --> 00:18:42,439 Speaker 3: disdain for medical personnel providing women with reproductive care, referring to 305 00:18:42,480 --> 00:18:46,280 Speaker 3: them as quote abortionists and called terminating pregnancy through medication 306 00:18:46,480 --> 00:18:49,320 Speaker 3: quote starving the unborn human until death. 307 00:18:49,920 --> 00:18:54,119 Speaker 2: Courts require that parties have what just is called standing 308 00:18:54,320 --> 00:18:57,360 Speaker 2: in order to file a lawsuit. That means, for instance, 309 00:18:57,359 --> 00:19:00,280 Speaker 2: that one party has been in some way directly inured 310 00:19:00,280 --> 00:19:03,680 Speaker 2: by the other party. President Joe Biden's food and Drug 311 00:19:03,680 --> 00:19:06,840 Speaker 2: administer I should question how the doctors and the Alliance 312 00:19:06,880 --> 00:19:10,080 Speaker 2: for Hippocratic Medicine had in any way been directly harmed 313 00:19:10,080 --> 00:19:14,320 Speaker 2: because women have access to abortion medications. Chasmeric found a 314 00:19:14,320 --> 00:19:18,000 Speaker 2: fans full way to grant the Alliance a right to sue. 315 00:19:18,359 --> 00:19:22,359 Speaker 2: He claimed that treating the rare complications from mitha pristone 316 00:19:22,440 --> 00:19:26,600 Speaker 2: overwhelmed hospitals in placed quote enormous pressure and stress on 317 00:19:26,680 --> 00:19:31,680 Speaker 2: the doctors during emergencies and complications. After granting the Alliance 318 00:19:31,760 --> 00:19:36,160 Speaker 2: standing Chasmeric issued a preliminary injunction suspending the FDA's approval 319 00:19:36,160 --> 00:19:38,720 Speaker 2: of the drug. The decision would go into effect in 320 00:19:38,760 --> 00:19:40,800 Speaker 2: seven days in order to give the federal government a 321 00:19:40,880 --> 00:19:44,080 Speaker 2: chance to file an appeal. In his decision, Chasmeric cited 322 00:19:44,119 --> 00:19:46,960 Speaker 2: two studies that claimed the drug was harmful, but both 323 00:19:46,960 --> 00:19:50,600 Speaker 2: had been retracted by a medical journal. In effect, Kasmeric 324 00:19:50,640 --> 00:19:55,040 Speaker 2: had banned mifipristone nationwide. The United States Justice Department and 325 00:19:55,119 --> 00:19:59,160 Speaker 2: dan Co Laboratories. MiFi pristone's manufacturer appealed, and the case 326 00:19:59,200 --> 00:20:04,160 Speaker 2: went to the Fifth Circuit. Judicial chaos surrounding the status 327 00:20:04,160 --> 00:20:08,280 Speaker 2: of myth for pristone reigned within hours, as ABC seven 328 00:20:08,600 --> 00:20:10,440 Speaker 2: in Los Angeles reported. 329 00:20:10,320 --> 00:20:14,040 Speaker 4: A judicial bombshell involving abortion that could have an impact 330 00:20:14,040 --> 00:20:17,960 Speaker 4: in all fifty states. A Texas federal judge revoking FDA 331 00:20:18,080 --> 00:20:21,040 Speaker 4: approval of an abortion pill that's been used for more 332 00:20:21,080 --> 00:20:24,200 Speaker 4: than twenty years, but another federal judge in Washington State 333 00:20:24,280 --> 00:20:28,159 Speaker 4: then issuing a contradictory ruling, setting up another major battle 334 00:20:28,200 --> 00:20:30,840 Speaker 4: over a woman's right to choose. I went Ashoo's reporter 335 00:20:30,920 --> 00:20:34,440 Speaker 4: Amy Powell, joining US live in studio with more tonight, Amy. 336 00:20:34,480 --> 00:20:37,080 Speaker 8: And Michelle This is causing a lot of concern. The 337 00:20:37,160 --> 00:20:39,800 Speaker 8: reversal of Roe versus Weighed by the Supreme Court was 338 00:20:39,840 --> 00:20:42,600 Speaker 8: supposed to mean that abortion laws would be left up 339 00:20:42,600 --> 00:20:46,359 Speaker 8: to individual states, But today a Texas federal judge issued 340 00:20:46,400 --> 00:20:49,400 Speaker 8: a ruling that could end access to an abortion pill 341 00:20:49,520 --> 00:20:53,560 Speaker 8: in all fifty states. Shortly after the Texas judge issued 342 00:20:53,600 --> 00:20:57,000 Speaker 8: his decision, a judge in Washington State issued a ruling 343 00:20:57,280 --> 00:21:00,600 Speaker 8: ordering the FDA to make no changes to the availability 344 00:21:00,800 --> 00:21:04,320 Speaker 8: of MiFi pristone. Those conflicting orders mean this case is 345 00:21:04,560 --> 00:21:07,240 Speaker 8: likely to end up in the Supreme Court. 346 00:21:08,000 --> 00:21:10,520 Speaker 3: The MiFi pristone case went to the Fifth Circuit, where 347 00:21:10,560 --> 00:21:15,040 Speaker 3: Judge Ho would write an opinion critics characterized as disturbing, baffling, 348 00:21:15,320 --> 00:21:18,160 Speaker 3: and bizarre. We'll talk about what happened in the MiFi 349 00:21:18,160 --> 00:21:21,480 Speaker 3: pristone case and how Judge Hoe, an immigrant himself, has 350 00:21:21,480 --> 00:21:24,159 Speaker 3: suggested that the children of migrants might not be eligible 351 00:21:24,200 --> 00:21:27,640 Speaker 3: for birthright citizenship because the United States is, in his words, 352 00:21:27,800 --> 00:21:30,719 Speaker 3: being invaded. But first we'll hear some, hopefully not two 353 00:21:30,760 --> 00:21:32,680 Speaker 3: bizarre messages from our sponsors. 354 00:21:43,280 --> 00:21:46,320 Speaker 2: When the Fifth Circuit heard the appeal of Kasmeric's ruling, 355 00:21:46,640 --> 00:21:49,920 Speaker 2: Hoe didn't recuse himself from the case, even though his wife, Allison, 356 00:21:50,040 --> 00:21:54,000 Speaker 2: a lawyer, has repeatedly appeared at events sponsored by the 357 00:21:54,040 --> 00:21:57,960 Speaker 2: Alliance Defending Freedom, one of the litigants, and even receives 358 00:21:58,000 --> 00:22:02,400 Speaker 2: speaking fees from the organization. Hoe brushed off this obvious. 359 00:22:02,040 --> 00:22:06,040 Speaker 3: Conflict of interest on August sixteenth, twenty twenty three. That 360 00:22:06,080 --> 00:22:09,720 Speaker 3: court didn't completely uphold Chismeric's ruling, but it did impose 361 00:22:09,800 --> 00:22:13,440 Speaker 3: numerous restrictions on the abortion pill called MiFi Pristown, claiming 362 00:22:13,440 --> 00:22:16,359 Speaker 3: that the FDA didn't fully consider its potential health risks. 363 00:22:17,280 --> 00:22:19,879 Speaker 3: If the Supreme Court had upheld the Fifth Circuit's opinion, 364 00:22:20,320 --> 00:22:22,640 Speaker 3: women would not have been allowed to receive a prescription 365 00:22:22,640 --> 00:22:25,840 Speaker 3: through the mail after online medical appointments. They would have 366 00:22:25,880 --> 00:22:29,240 Speaker 3: been able to receive the prescription only after a direct 367 00:22:29,320 --> 00:22:31,960 Speaker 3: visit with a doctor and after three in person follow 368 00:22:32,040 --> 00:22:35,040 Speaker 3: up appointments. The window in which women would have been 369 00:22:35,040 --> 00:22:37,160 Speaker 3: allowed to take miphi pristown would have been cut from 370 00:22:37,280 --> 00:22:40,240 Speaker 3: seventy days of pregnancy to about forty nine. 371 00:22:41,200 --> 00:22:44,840 Speaker 2: Hoe wanted to go much further than the Fifth Circuit's majority. 372 00:22:45,000 --> 00:22:47,879 Speaker 2: He wanted to rescind the FDA's approval a myth for 373 00:22:47,960 --> 00:22:50,439 Speaker 2: press though, which would have removed the drug from the 374 00:22:50,440 --> 00:22:54,560 Speaker 2: market entirely. When judges agree with a majority on a panel, 375 00:22:54,600 --> 00:22:57,280 Speaker 2: they can write a concurring opinion that gives them a 376 00:22:57,359 --> 00:23:00,840 Speaker 2: chance to grand stand about a Case's what Hoe did 377 00:23:00,880 --> 00:23:04,280 Speaker 2: in his concurrence when he bitterly complained that some believed 378 00:23:04,280 --> 00:23:07,159 Speaker 2: that quote no one should ever question the FDA. 379 00:23:08,160 --> 00:23:10,879 Speaker 3: Hoe then asked the public to pity the obstetricians he 380 00:23:10,920 --> 00:23:14,840 Speaker 3: claimed suffer because of women's abortion rights. Hoe drew on 381 00:23:14,960 --> 00:23:17,359 Speaker 3: environmental case law, which acknowledges that a member of the 382 00:23:17,359 --> 00:23:20,920 Speaker 3: public might believe that they've suffered a loss when, for instance, 383 00:23:21,080 --> 00:23:25,280 Speaker 3: a park is destroyed because it is the location of 384 00:23:25,600 --> 00:23:28,439 Speaker 3: a new mining operation, and then they can sue on 385 00:23:28,520 --> 00:23:31,760 Speaker 3: that basis. Hoe argued that doctors could suffer the same 386 00:23:31,800 --> 00:23:35,720 Speaker 3: sort of damages when a pregnancy is medically ended. In 387 00:23:35,760 --> 00:23:38,520 Speaker 3: his concurrence on MIPH Pristowin, Hoe wrote the following. 388 00:23:39,080 --> 00:23:42,639 Speaker 1: Unborn babies are a source of profound joy for those 389 00:23:42,680 --> 00:23:48,280 Speaker 1: who view them. Expectant parents eagerly share ultrasound photos with 390 00:23:48,440 --> 00:23:52,520 Speaker 1: loved ones, friends and family, cheer at the sight of 391 00:23:52,560 --> 00:23:57,080 Speaker 1: an unborn child, and doctor's delight in working with their 392 00:23:57,200 --> 00:24:02,680 Speaker 1: unborn patients, and experience an esthetic injury when they are aborted. 393 00:24:03,800 --> 00:24:06,680 Speaker 2: Leo Yu is an assistant professor of law at the 394 00:24:06,760 --> 00:24:11,359 Speaker 2: University of Massachusetts at Dartmouth who specializes in civil rights law. 395 00:24:12,000 --> 00:24:15,879 Speaker 2: You actually received law degrees in two countries, his native 396 00:24:15,960 --> 00:24:19,600 Speaker 2: China and in the United States at Southern Methodist University 397 00:24:19,600 --> 00:24:22,720 Speaker 2: in Dallas. While he lived in Texas, he lived under 398 00:24:22,760 --> 00:24:26,040 Speaker 2: the jurisdiction of the Fifth Circuit and saw close hand 399 00:24:26,080 --> 00:24:29,280 Speaker 2: the legal chaos. The Fifth Circuit is created in the 400 00:24:29,280 --> 00:24:33,240 Speaker 2: states of Texas, Louisiana, Mississippi. In twenty twenty one, he 401 00:24:33,320 --> 00:24:37,879 Speaker 2: created the podcast Plead the Fifth Professor. U believes that 402 00:24:37,920 --> 00:24:41,480 Speaker 2: when Hoe writes extreme opinions, such as in the methaprostone case, 403 00:24:41,800 --> 00:24:44,560 Speaker 2: he's desperately trying to get one man's attention. 404 00:24:45,160 --> 00:24:48,639 Speaker 9: He is auditioning all the time to the Supreme Court, 405 00:24:48,880 --> 00:24:52,199 Speaker 9: and he went so far to create something that is 406 00:24:52,400 --> 00:24:56,040 Speaker 9: quite honestly, just not even sensible. It's like, you know, 407 00:24:56,280 --> 00:25:01,200 Speaker 9: pe Paul wants to see cute little ultrasoule of babies, 408 00:25:01,280 --> 00:25:04,520 Speaker 9: and that makes important, you know, them having the standing 409 00:25:04,680 --> 00:25:07,760 Speaker 9: to challenge abortion pills, they wouldn't be able to see 410 00:25:07,800 --> 00:25:10,280 Speaker 9: those cute little altha sounds anymore. 411 00:25:10,359 --> 00:25:13,160 Speaker 2: And it just that part. 412 00:25:12,840 --> 00:25:16,879 Speaker 9: Of rationale is quite just insane. I think that part. 413 00:25:17,160 --> 00:25:19,720 Speaker 9: I don't know if that is something that he truly believed, 414 00:25:19,840 --> 00:25:22,840 Speaker 9: And I would say that it's hard to imagine for 415 00:25:22,920 --> 00:25:27,440 Speaker 9: anybody who truly believed that sort of analysis. So I 416 00:25:27,480 --> 00:25:31,040 Speaker 9: put that part of analysis as another way from justice 417 00:25:31,040 --> 00:25:34,760 Speaker 9: whod trying to audition for the Supreme Court, Like, hey, 418 00:25:35,400 --> 00:25:37,719 Speaker 9: you think you found a concerns of the judge somewhere 419 00:25:37,720 --> 00:25:40,600 Speaker 9: in DC, Look at me. I'm even more. And that's 420 00:25:40,760 --> 00:25:41,320 Speaker 9: what it is. 421 00:25:42,160 --> 00:25:44,440 Speaker 3: No one would accuse the United States Supreme Court under 422 00:25:44,520 --> 00:25:48,679 Speaker 3: John Roberts of being moderate, but repeatedly Roberts and the 423 00:25:48,720 --> 00:25:51,119 Speaker 3: other justices have taken the Fifth Circuit to task for 424 00:25:51,200 --> 00:25:55,000 Speaker 3: going to extremes, and it's ruined. As Texas Tribune writer 425 00:25:55,200 --> 00:25:59,160 Speaker 3: Eleanor Clibanoff put it, quote, if the Fifth US Circuit 426 00:25:59,280 --> 00:26:01,760 Speaker 3: Court of Appeals as a boxer, you'd bet on the 427 00:26:01,800 --> 00:26:02,200 Speaker 3: other guy. 428 00:26:03,119 --> 00:26:06,200 Speaker 2: Writing a Supreme Court's reaction of Fifth Circuit rulings in 429 00:26:06,480 --> 00:26:10,320 Speaker 2: July twenty twenty four, Klebanov noted that only three of 430 00:26:10,359 --> 00:26:14,680 Speaker 2: the tribunal's decisions had been upheld while aid had been overturned, 431 00:26:15,119 --> 00:26:18,280 Speaker 2: a one loss record that ranked amongst the worst among 432 00:26:18,440 --> 00:26:22,000 Speaker 2: circuit courts in the country in a Metha pristone case, 433 00:26:22,520 --> 00:26:26,399 Speaker 2: just as Brett Kavanaugh, hardly a Bolshevik, expressed dismay that 434 00:26:26,440 --> 00:26:30,000 Speaker 2: the Alliance for Hippocratic Medicine had been granted standing. 435 00:26:30,119 --> 00:26:34,399 Speaker 3: Kavanaugh wrote this quote, For a plaintiff to get in 436 00:26:34,440 --> 00:26:37,760 Speaker 3: the federal courthouse door and obtain a judicial determination of 437 00:26:37,760 --> 00:26:40,439 Speaker 3: what the governing law is, the plaintiff cannot be a 438 00:26:40,480 --> 00:26:43,720 Speaker 3: mere bystander, but instead must have a personal stake in 439 00:26:43,760 --> 00:26:47,359 Speaker 3: the dispute. End quote. If the standard set by Judge 440 00:26:47,400 --> 00:26:49,679 Speaker 3: Ho and his peers in New Orleans remained in place, 441 00:26:50,040 --> 00:26:53,800 Speaker 3: Kavanaugh warned, quote, virtually every citizen would have standing to 442 00:26:53,920 --> 00:26:58,320 Speaker 3: challenge virtually every government action that they do not like. Governing, 443 00:26:58,440 --> 00:27:00,440 Speaker 3: he suggested, would become in possible. 444 00:27:01,160 --> 00:27:03,119 Speaker 2: It wasn't just on the issue of legal standing that 445 00:27:03,160 --> 00:27:06,479 Speaker 2: the Supreme Court found the Fifth Circuit Court's judgment lacking. 446 00:27:07,119 --> 00:27:09,560 Speaker 2: In the case of Rahemi versus the United States, the 447 00:27:09,600 --> 00:27:14,160 Speaker 2: Fifth Circuit overturned a federal law that prohibited domestic abusers 448 00:27:14,160 --> 00:27:18,480 Speaker 2: from buying firearms. The Highest Court on June twenty first, 449 00:27:18,480 --> 00:27:21,719 Speaker 2: twenty twenty four, overturned that decision by an eight to 450 00:27:21,760 --> 00:27:26,119 Speaker 2: one margin. Chief Justice John Roberts, who generally supports a 451 00:27:26,240 --> 00:27:29,280 Speaker 2: very broad view of gun right, said that history quote 452 00:27:29,600 --> 00:27:34,199 Speaker 2: confirms what common sense suggests. When an individual poses a 453 00:27:34,240 --> 00:27:38,400 Speaker 2: clear threat of physical violence to another, the threatening individual 454 00:27:38,600 --> 00:27:42,880 Speaker 2: may be disarmed. Roberts also suggested that the Fifth Circuit 455 00:27:43,280 --> 00:27:47,439 Speaker 2: misunderstood the Supreme Court's view of the Second Amendment. Fusser, 456 00:27:47,560 --> 00:27:50,840 Speaker 2: you told us that as conservative as Supreme Court majority 457 00:27:50,920 --> 00:27:54,000 Speaker 2: might be outside of Clarence Thomas, they have found the 458 00:27:54,000 --> 00:27:58,720 Speaker 2: Fifth Circuit's rulings to be an embarrassment to conservative judicial philosophy. 459 00:27:59,240 --> 00:28:01,040 Speaker 9: All that again, I think that was the a to 460 00:28:01,200 --> 00:28:03,919 Speaker 9: one opinion, and Clarence Thomas was the only person who 461 00:28:03,960 --> 00:28:06,639 Speaker 9: would agree was the Fifth CircUse. So in general, I 462 00:28:06,720 --> 00:28:11,560 Speaker 9: think the Supreme Court is definitely conservative. But the Supreme 463 00:28:11,640 --> 00:28:16,120 Speaker 9: Court appreciate a certain type of conservativeness that they can 464 00:28:16,200 --> 00:28:19,320 Speaker 9: chew on, and it's something that it can lays with 465 00:28:19,880 --> 00:28:24,879 Speaker 9: some academic legitimacy and knowledges, some sort of attention seeking 466 00:28:26,080 --> 00:28:30,320 Speaker 9: paragraphs that would make people hold feel some sort of feeling. 467 00:28:31,480 --> 00:28:33,399 Speaker 3: On the last day of it's twenty twenty four session, 468 00:28:33,800 --> 00:28:36,080 Speaker 3: the Supreme Court sent back to the Fifth Circuit the 469 00:28:36,119 --> 00:28:38,960 Speaker 3: case involving a twenty twenty one Texas law that limited 470 00:28:38,960 --> 00:28:41,840 Speaker 3: the ability of social media companies to suspend user accounts 471 00:28:41,880 --> 00:28:45,760 Speaker 3: for extremist or violence inciting content. The law was inspired 472 00:28:45,760 --> 00:28:48,680 Speaker 3: by the decision of what was then called Twitter and 473 00:28:48,760 --> 00:28:52,360 Speaker 3: now x, as well as other social media companies, to 474 00:28:52,560 --> 00:28:55,840 Speaker 3: deplatform Donald Trump after the president encouraged his supporters to 475 00:28:56,000 --> 00:28:59,240 Speaker 3: ransack the capital and stop the counting of electoral college 476 00:28:59,280 --> 00:29:03,800 Speaker 3: votes on January one. The Fifth Circuit previously upheld the law, 477 00:29:04,120 --> 00:29:07,360 Speaker 3: claiming that it rejected quote the idea that corporations have 478 00:29:07,400 --> 00:29:10,320 Speaker 3: a free, willing, First Amendment right to censor what people say. 479 00:29:11,120 --> 00:29:14,000 Speaker 2: Hoe and his allies on the Fifth Circuit, however, are 480 00:29:14,040 --> 00:29:18,320 Speaker 2: fine with censoring free expression by members of the LGBTQ community. 481 00:29:18,920 --> 00:29:22,440 Speaker 2: In March twenty twenty three, Walter Wendler, the president of 482 00:29:22,480 --> 00:29:26,760 Speaker 2: West Texas A and M University, a public institution, cancel 483 00:29:26,800 --> 00:29:30,640 Speaker 2: at drag shows schedule at Legacy Hall, a campus building. 484 00:29:31,680 --> 00:29:34,800 Speaker 2: Organizers plan to use proceeds from the performance to raise 485 00:29:34,840 --> 00:29:38,280 Speaker 2: money for the Trevor Project, a nonprofit group that seeks 486 00:29:38,280 --> 00:29:42,440 Speaker 2: to prevent suicides in the LGBTQ plus community. In a 487 00:29:42,480 --> 00:29:46,880 Speaker 2: statement canceling the show, Wendler explicitly said that his private 488 00:29:46,920 --> 00:29:49,640 Speaker 2: religious beliefs guided his decision. 489 00:29:50,520 --> 00:29:53,960 Speaker 1: West Texas A and M University will not host a 490 00:29:54,040 --> 00:29:57,959 Speaker 1: drag show on campus. I believe every human being is 491 00:29:58,040 --> 00:30:01,760 Speaker 1: created in the image of God, and therefore a person 492 00:30:01,840 --> 00:30:06,280 Speaker 1: of dignity. Does a drag show reserve a single thread 493 00:30:06,400 --> 00:30:11,760 Speaker 1: of human dignity? I think not. As a performance exaggerating 494 00:30:11,920 --> 00:30:19,920 Speaker 1: aspects of womanhood, sexuality, femininity, gender, drag shows stereotype women 495 00:30:20,480 --> 00:30:25,640 Speaker 1: in cartoon like extremes for the amusement of others, and 496 00:30:25,800 --> 00:30:33,840 Speaker 1: discriminate against womanhood. Drag shows are derisive, divisive, and demoralizing misogyny. 497 00:30:34,400 --> 00:30:39,280 Speaker 1: No matter what the stated intent, such conduct runs counter 498 00:30:39,680 --> 00:30:43,400 Speaker 1: to the purpose of West Texas A and M. A 499 00:30:43,440 --> 00:30:47,040 Speaker 1: person or group should not attempt to elevate itself or 500 00:30:47,080 --> 00:30:52,000 Speaker 1: a cause by mocking another person or group. As a 501 00:30:52,120 --> 00:30:57,640 Speaker 1: university president, I would not support blackface performances on our campus, 502 00:30:58,400 --> 00:31:01,760 Speaker 1: even if told the performance is a form of free 503 00:31:01,800 --> 00:31:05,960 Speaker 1: speech or intended as humor, it is wrong. 504 00:31:07,080 --> 00:31:11,800 Speaker 3: Spectrum WT, a pro LGBTQ student organization, filed a suit 505 00:31:11,880 --> 00:31:15,360 Speaker 3: challenging the band and requested an injunction blocking Wendler's action, 506 00:31:16,080 --> 00:31:19,520 Speaker 3: but Judge Kasmirick the same jurist who initially blocked access 507 00:31:19,520 --> 00:31:22,479 Speaker 3: to MiFi pristone sided with West Texas A and M 508 00:31:22,840 --> 00:31:25,680 Speaker 3: and issued a preliminary ruling preventing the drag show from 509 00:31:25,680 --> 00:31:29,240 Speaker 3: taking place pending a trial. He said the performance supposed 510 00:31:29,600 --> 00:31:34,440 Speaker 3: sexual content lacked free speech protections. Quote the First Amendment 511 00:31:34,480 --> 00:31:37,240 Speaker 3: does not prevent school officials from restricting vulgar and lewd 512 00:31:37,320 --> 00:31:42,120 Speaker 3: conduct that would undermine the school's basic educational mission, particularly 513 00:31:42,120 --> 00:31:44,920 Speaker 3: in settings where children are physically present, Cosmeric wrote in 514 00:31:44,960 --> 00:31:47,120 Speaker 3: his September twenty two to twenty twenty three opinion. 515 00:31:47,840 --> 00:31:51,840 Speaker 2: Spectrum WT appealed. The case went to the Fifth Circuit, 516 00:31:51,840 --> 00:31:54,600 Speaker 2: where a three judge panel heard arguments on whether the 517 00:31:54,640 --> 00:31:59,080 Speaker 2: fundraiser could proceed. On August eighteen, twenty five, by two 518 00:31:59,160 --> 00:32:04,920 Speaker 2: to one vote, the panel reversed Kasmeric's ruling. Judge Leslie Southwick, 519 00:32:05,000 --> 00:32:08,640 Speaker 2: a George W. Bush appointee, and a Bill Clinton appointed 520 00:32:08,720 --> 00:32:12,360 Speaker 2: US Circuit judge James Dennis ruled that West Texas A 521 00:32:12,400 --> 00:32:16,360 Speaker 2: and M had violated the gay student Organization's express of rights. 522 00:32:17,000 --> 00:32:21,000 Speaker 3: Predictably, Hoe dissented. He simply echoed the arguments used by 523 00:32:21,040 --> 00:32:25,720 Speaker 3: the university president, insisting that banning drag shows somehow advanced inclusivity. 524 00:32:26,440 --> 00:32:30,760 Speaker 1: University officials have determined that drag shows are sexists for 525 00:32:30,880 --> 00:32:35,720 Speaker 1: the same reason that blackface performances are racist, and Supreme 526 00:32:35,760 --> 00:32:40,440 Speaker 1: Court President demands that we respect university officials when it 527 00:32:40,480 --> 00:32:46,120 Speaker 1: comes to regulating student activities to ensure an inclusive educational 528 00:32:46,200 --> 00:32:47,640 Speaker 1: environment for all. 529 00:32:48,360 --> 00:32:52,440 Speaker 3: Spectrum wt's victory proved temporary. The panel's decision would not 530 00:32:52,480 --> 00:32:54,560 Speaker 3: go into effect until the case was heard by the 531 00:32:54,720 --> 00:32:58,560 Speaker 3: entire Fifth Circuit Court. Meanwhile, a full trial unfolded in 532 00:32:58,640 --> 00:33:02,360 Speaker 3: Kasmirics Court in January. Not surprisingly, he ruled in favor 533 00:33:02,400 --> 00:33:04,600 Speaker 3: of West Texas A and M. He said that the 534 00:33:04,600 --> 00:33:06,840 Speaker 3: student group had not proven that the show was meant 535 00:33:06,880 --> 00:33:08,920 Speaker 3: to convey a message that might be protected by the 536 00:33:08,920 --> 00:33:11,880 Speaker 3: First Amendment, and that by their nature, drag shows have 537 00:33:12,000 --> 00:33:15,440 Speaker 3: sexualized content, and the university had the right to regulate 538 00:33:15,720 --> 00:33:19,240 Speaker 3: on campus grounds. The hearing before the full Fifth Circuit 539 00:33:19,320 --> 00:33:22,960 Speaker 3: was canceled, although Spectrum's legal team at the Foundation for 540 00:33:23,040 --> 00:33:27,160 Speaker 3: Individual Rights and Expression plans a different appeal. One twenty 541 00:33:27,160 --> 00:33:29,840 Speaker 3: fifth a panel of the Fifth Circuit also upheld a 542 00:33:29,880 --> 00:33:33,120 Speaker 3: new state ban on certain types of drag performances. Judge 543 00:33:33,160 --> 00:33:35,840 Speaker 3: Kurt Engelhart, appointed to the Fifth Circuit by President Donald 544 00:33:35,880 --> 00:33:39,280 Speaker 3: Trump expressed doubt that such shows were protected by the Constitution, 545 00:33:39,600 --> 00:33:42,560 Speaker 3: especially said quote in the presence of minors. 546 00:33:43,400 --> 00:33:46,400 Speaker 2: While the Fifth Circuit chipped away at free speech rights 547 00:33:46,400 --> 00:33:50,160 Speaker 2: for the LGBTQ plus community, the advanced the rights of 548 00:33:50,240 --> 00:33:54,600 Speaker 2: states to impose speech on public school teachers. The Full Court, 549 00:33:54,680 --> 00:33:57,920 Speaker 2: by a twelve to sixth margin, lifted a district court's 550 00:33:58,000 --> 00:34:01,360 Speaker 2: hold on a Louisiana state law require siring teachers display 551 00:34:01,840 --> 00:34:05,920 Speaker 2: post size copies of the Ten Commandments in public school classrooms, 552 00:34:06,720 --> 00:34:09,840 Speaker 2: in spite of the First Amendments prohibition establishing a state 553 00:34:09,880 --> 00:34:14,279 Speaker 2: religion or requiring religious practice. In the efforts of the 554 00:34:14,320 --> 00:34:17,560 Speaker 2: founders of the American Republic, like Thomas Jefferson, direct a 555 00:34:17,600 --> 00:34:21,960 Speaker 2: wall of separation between church and state. James Hose celebrated 556 00:34:22,000 --> 00:34:26,040 Speaker 2: the decision. The Louisiana law was the only constitutional host 557 00:34:26,120 --> 00:34:30,799 Speaker 2: said it quote affirms our nation's highest and most noble traditions. 558 00:34:31,400 --> 00:34:33,840 Speaker 2: That claim left Professor U baffled. 559 00:34:34,440 --> 00:34:38,160 Speaker 9: The question is is he a historian when he said 560 00:34:38,200 --> 00:34:41,239 Speaker 9: that the founding members of this country would like that? 561 00:34:41,680 --> 00:34:45,319 Speaker 9: What historical record is he relying on? But isn't that 562 00:34:45,400 --> 00:34:49,480 Speaker 9: even anti common knowledge that our founders would really resent 563 00:34:49,640 --> 00:34:54,960 Speaker 9: that to push our newly establed republic to a situation 564 00:34:55,120 --> 00:34:58,360 Speaker 9: where we push our citizens to believe in certain things religiously. 565 00:34:58,760 --> 00:35:01,719 Speaker 9: That is exactly the reason widely left Europe. 566 00:35:02,560 --> 00:35:04,960 Speaker 3: The Fifth Circuit has presented a threat not only to 567 00:35:05,320 --> 00:35:08,799 Speaker 3: the separation of church and state, free speech, and LGBTQ 568 00:35:08,920 --> 00:35:11,840 Speaker 3: plus rights, but has also placed the rights of workers 569 00:35:11,880 --> 00:35:15,759 Speaker 3: in its crosshairs. On August nineteenth, the United States Fifth 570 00:35:15,760 --> 00:35:18,960 Speaker 3: Circuit Court of Appeals upheld an injunction requested by attorneys 571 00:35:19,000 --> 00:35:22,880 Speaker 3: for Elon Musk's SpaceX Corporation, ruling that the structure of 572 00:35:22,880 --> 00:35:27,080 Speaker 3: the National Labor Relations Board is unconstitutional and prohibiting it 573 00:35:27,200 --> 00:35:30,600 Speaker 3: from acting against that company and two other corporations the 574 00:35:30,920 --> 00:35:35,560 Speaker 3: NLRB charged with labor law violations. As has often happened, 575 00:35:35,800 --> 00:35:38,680 Speaker 3: the Fifth Circuit Court ruling conflicts with that of another 576 00:35:38,680 --> 00:35:41,960 Speaker 3: Circuit court, the Ninth Circuit, which upheld the power granted 577 00:35:41,960 --> 00:35:45,520 Speaker 3: by the NLRB. This split almost certainly guarantees the case 578 00:35:45,520 --> 00:35:47,360 Speaker 3: will end up in front of a Supreme Court that 579 00:35:47,440 --> 00:35:49,240 Speaker 3: has been no friend of American workers. 580 00:35:50,360 --> 00:35:54,239 Speaker 2: On rare occasions, the Fifth Circuit might still acknowledged as 581 00:35:54,280 --> 00:35:57,040 Speaker 2: society is tilted against the poor and people of color. 582 00:35:58,239 --> 00:36:01,360 Speaker 2: A panel made up of Fifth Circuit judges ruled that 583 00:36:01,520 --> 00:36:05,440 Speaker 2: Labine Conan could proceed with our lawsuit against the United 584 00:36:05,440 --> 00:36:09,319 Speaker 2: States Post Office, a landlord who owns two properties in 585 00:36:09,480 --> 00:36:13,759 Speaker 2: Ulus suburb between Dallas and for Worth. Conan claimed that, 586 00:36:13,880 --> 00:36:18,480 Speaker 2: beginning in twenty twenty two, local postal employees abruptly stopped 587 00:36:18,480 --> 00:36:21,480 Speaker 2: delivering mail, first to her and then to her tenants, 588 00:36:21,840 --> 00:36:24,200 Speaker 2: because she said they didn't like the idea that a 589 00:36:24,239 --> 00:36:26,000 Speaker 2: black person owned the properties. 590 00:36:26,600 --> 00:36:29,880 Speaker 3: The Post Office is mostly shielded from lawsuits by a 591 00:36:29,960 --> 00:36:34,760 Speaker 3: legal doctrine called sovereign immunity, under which, as legal analyst 592 00:36:34,840 --> 00:36:38,240 Speaker 3: Eli Msdonnell explains, quote, the government cannot be held liable 593 00:36:38,239 --> 00:36:41,400 Speaker 3: for monetary damages arising out of actions taken by the government. 594 00:36:42,040 --> 00:36:45,440 Speaker 3: What was unique about the United States Postal Service Bucanan case, however, 595 00:36:46,000 --> 00:36:49,000 Speaker 3: was that in this circumstance, the government was causing intentional 596 00:36:49,080 --> 00:36:52,080 Speaker 3: damage to a private citizen. This time, the Fifth Circuit 597 00:36:52,120 --> 00:36:55,080 Speaker 3: ruled in favor of a marginalized citizen and ruled the 598 00:36:55,080 --> 00:36:58,400 Speaker 3: suit could go forward. This rare progressive ruling was for 599 00:36:58,480 --> 00:37:02,440 Speaker 3: not However, this Supreme Court overturned the Fifth Circuit once again, 600 00:37:03,280 --> 00:37:06,240 Speaker 3: Clarence Thomas wrote the opinion for the five four majority, 601 00:37:06,400 --> 00:37:10,000 Speaker 3: essentially ruling, as miss Stalls summarized the case quote that 602 00:37:10,040 --> 00:37:14,040 Speaker 3: the post officers immune from liability even when its workers 603 00:37:14,080 --> 00:37:18,239 Speaker 3: intentionally refuse to do their jobs. Miss Stalls suggested that 604 00:37:18,280 --> 00:37:23,000 Speaker 3: this decision carries ominous implications for the upcoming election, should 605 00:37:23,080 --> 00:37:26,359 Speaker 3: the US Postal Service, for instance, refuse to deliver mail 606 00:37:26,400 --> 00:37:30,360 Speaker 3: in ballots in spite of James Hosts status as an immigrant. 607 00:37:30,400 --> 00:37:35,120 Speaker 3: His most alarming opinion might be regarding birthright citizenship. Ratified 608 00:37:35,200 --> 00:37:37,719 Speaker 3: in eighteen sixty eight, just three years after the end 609 00:37:37,760 --> 00:37:40,160 Speaker 3: of the Civil War, fourteenth Amendment to the United States 610 00:37:40,239 --> 00:37:43,800 Speaker 3: Constitution declares in its opening sentence that quote all persons 611 00:37:43,840 --> 00:37:46,800 Speaker 3: born or naturalized in the United States, and subject to 612 00:37:46,840 --> 00:37:50,120 Speaker 3: the jurisdiction thereof are citizens of the United States and 613 00:37:50,160 --> 00:37:51,800 Speaker 3: of the state wherein they reside. 614 00:37:52,239 --> 00:37:54,400 Speaker 2: For one hundred and twenty eight years, Supreme Court has 615 00:37:54,440 --> 00:37:58,440 Speaker 2: rejected claims that citizenship can be denied to persons born 616 00:37:58,520 --> 00:38:01,920 Speaker 2: or naturalized here based on their race or the immigration 617 00:38:02,040 --> 00:38:05,359 Speaker 2: status of their parents. In the eighteen ninety eight United 618 00:38:05,400 --> 00:38:09,480 Speaker 2: States versus Wang kim Ark case, the Supreme Court upheld 619 00:38:09,520 --> 00:38:12,000 Speaker 2: the citizenship of a man born in the United States 620 00:38:12,000 --> 00:38:16,080 Speaker 2: to Chinese parents. The government tried to block Arc from 621 00:38:16,200 --> 00:38:19,920 Speaker 2: returning to the United States after he visited China, based 622 00:38:19,920 --> 00:38:23,760 Speaker 2: on the eighteen a two Chinese Exclusion Act, which barred 623 00:38:23,760 --> 00:38:27,520 Speaker 2: the Chinese from immigrating here. The court ruled sixth to 624 00:38:27,560 --> 00:38:30,560 Speaker 2: two that ARC's birth in the United States established his 625 00:38:30,840 --> 00:38:33,920 Speaker 2: American citizenship and his right to reside here. 626 00:38:34,760 --> 00:38:39,080 Speaker 3: James Hoe has not always attacked the concept of birthright citizenship, 627 00:38:39,080 --> 00:38:40,560 Speaker 3: and in fact he used to defend it. 628 00:38:41,040 --> 00:38:41,600 Speaker 2: Quote. 629 00:38:41,800 --> 00:38:44,840 Speaker 3: Birthright citizenship is a constitutional right no less for the 630 00:38:44,880 --> 00:38:48,440 Speaker 3: children of undocumented persons than for the descendants of passengers 631 00:38:48,600 --> 00:38:50,880 Speaker 3: of the Mayflower, Ho said in a two thousand and 632 00:38:50,880 --> 00:38:53,280 Speaker 3: seven opinion piece for the Des Moines Registered. 633 00:38:54,320 --> 00:38:57,960 Speaker 2: However, as the political wins shifted strongly against immigrants, particularly 634 00:38:58,000 --> 00:39:01,040 Speaker 2: in the Trump era, Hoe is all so tilted in 635 00:39:01,040 --> 00:39:05,040 Speaker 2: a dramatically different direction. In a twenty twenty four interview, 636 00:39:05,360 --> 00:39:07,880 Speaker 2: Hoe claimed that the United States was being invaded by 637 00:39:07,920 --> 00:39:11,640 Speaker 2: the foreign born, and that denying citizenship to the children 638 00:39:11,760 --> 00:39:15,840 Speaker 2: of the undocumented was necessary to defend national sovereignty. 639 00:39:16,680 --> 00:39:22,319 Speaker 1: Hoe said birthright citizenship obviously doesn't apply in case of 640 00:39:22,400 --> 00:39:27,120 Speaker 1: war or invasion. No one to my knowledge has ever 641 00:39:27,280 --> 00:39:31,560 Speaker 1: argued that the children of invading aliens are entitled to 642 00:39:31,680 --> 00:39:36,720 Speaker 1: birthright citizenship, and I can't imagine what the legal argument 643 00:39:36,840 --> 00:39:41,319 Speaker 1: for that would be. It's like the debate over unlawful combatants. 644 00:39:41,719 --> 00:39:46,840 Speaker 1: After nine to eleven, everyone agrees that birthright citizenship doesn't 645 00:39:46,880 --> 00:39:51,239 Speaker 1: apply to the children of lawful combatants, and it's hard 646 00:39:51,280 --> 00:39:56,080 Speaker 1: to see anyone arguing that unlawful combatants should be treated 647 00:39:56,120 --> 00:39:58,960 Speaker 1: more favorably than lawful combatants. 648 00:40:00,040 --> 00:40:02,480 Speaker 3: The question of birthright citizenship might now be out of 649 00:40:02,520 --> 00:40:04,720 Speaker 3: the hands of Hoe and the rest of the Fifth Circuit. 650 00:40:05,320 --> 00:40:07,799 Speaker 3: On December fifth, the Supreme Court agreed to hear a 651 00:40:07,840 --> 00:40:11,040 Speaker 3: case on the constitutionality of Donald Trump's executive order that 652 00:40:11,040 --> 00:40:13,520 Speaker 3: would deny citizenship to those born in the United States 653 00:40:13,719 --> 00:40:16,560 Speaker 3: if their parents were in the country temporarily or lacked 654 00:40:16,600 --> 00:40:20,200 Speaker 3: legal status. Doctor U thinks that the Supreme Court is 655 00:40:20,280 --> 00:40:23,439 Speaker 3: likely to accommodate those restrictions, even as they reject James 656 00:40:23,480 --> 00:40:25,160 Speaker 3: Hoe's more extreme theories. 657 00:40:25,800 --> 00:40:29,240 Speaker 9: I think that Supreme Court would roll back some portion 658 00:40:29,400 --> 00:40:33,959 Speaker 9: of the Fourteenth Amendment protection over people who are born 659 00:40:34,000 --> 00:40:36,600 Speaker 9: in this country, but I don't think they are going 660 00:40:36,680 --> 00:40:40,040 Speaker 9: to what justice Hoe is going after that is the 661 00:40:40,160 --> 00:40:41,200 Speaker 9: invasion theory. 662 00:40:41,880 --> 00:40:45,279 Speaker 2: That doesn't mean that James Hoe may not one day 663 00:40:45,400 --> 00:40:49,160 Speaker 2: bring his extreme views on immigration to the nation's highest court. 664 00:40:50,160 --> 00:40:52,359 Speaker 2: The two most far right judges on the United States 665 00:40:52,400 --> 00:40:56,120 Speaker 2: Supreme Court are James Hoe's mentor, Clarence Thomas, who turned 666 00:40:56,160 --> 00:41:00,520 Speaker 2: seventy eight on June twenty three, and Samuel Alito, celebrates 667 00:41:00,520 --> 00:41:05,440 Speaker 2: his seventy sixth birthday on April first. Court watchers are 668 00:41:06,200 --> 00:41:09,560 Speaker 2: speculating that Alita might step down as early as October. 669 00:41:10,360 --> 00:41:14,080 Speaker 2: His wife, Martha Anne, has expressed eager anticipation that the 670 00:41:14,120 --> 00:41:17,520 Speaker 2: couple might soon be able to openly express their political views. 671 00:41:17,840 --> 00:41:20,640 Speaker 2: As though the Alito's opinions have ever been a mystery, 672 00:41:21,239 --> 00:41:24,640 Speaker 2: It's still an uphill battle, but the odds of Democrats 673 00:41:24,680 --> 00:41:28,600 Speaker 2: retaking the Senate after the off here elections have improved 674 00:41:28,640 --> 00:41:32,879 Speaker 2: significantly in recent weeks. Alita may want to retire, while 675 00:41:32,920 --> 00:41:35,640 Speaker 2: a Republican controlled Senate would still be able to rubber 676 00:41:35,719 --> 00:41:39,680 Speaker 2: stamp Trump's choice for his successor. Alito also has a 677 00:41:39,719 --> 00:41:42,440 Speaker 2: book coming out on October sixth, the day after the 678 00:41:42,440 --> 00:41:45,719 Speaker 2: Supreme Court starts its fall term. Continuing to serve on 679 00:41:45,760 --> 00:41:48,799 Speaker 2: the Court would interfere with any book promotion tour. Such 680 00:41:48,840 --> 00:41:51,440 Speaker 2: an opening might lead to James Ho getting a promotion, 681 00:41:52,040 --> 00:41:54,800 Speaker 2: but Professor Hugh said that the Fifth Court judge shouldn't 682 00:41:54,960 --> 00:41:58,120 Speaker 2: pack his bags just yet. Trump has largely outsourced the 683 00:41:58,200 --> 00:42:00,360 Speaker 2: job of picking new federal judges or promoting them to 684 00:42:00,440 --> 00:42:03,279 Speaker 2: the far right Federal Society, And you think that home 685 00:42:03,360 --> 00:42:07,200 Speaker 2: might lack the polish that a powerful lobbying group would see. 686 00:42:07,520 --> 00:42:10,000 Speaker 9: I think, you know, it's not a secret that he's 687 00:42:10,000 --> 00:42:12,359 Speaker 9: trying to get there, but I honestly think it's not 688 00:42:12,400 --> 00:42:16,040 Speaker 9: gonna be him. He doesn't really fit into the profile 689 00:42:16,200 --> 00:42:20,240 Speaker 9: of a person who would get there. I think the FESSOC, 690 00:42:20,480 --> 00:42:23,960 Speaker 9: you know, the Federalist Society is basically the handler of 691 00:42:24,000 --> 00:42:26,920 Speaker 9: that situation. They would be able to you know, screen 692 00:42:27,000 --> 00:42:31,000 Speaker 9: name and you know, make short lists to the White House. 693 00:42:31,400 --> 00:42:33,839 Speaker 9: And so what kind of people they're looking for. I 694 00:42:33,880 --> 00:42:36,800 Speaker 9: think that they're definitely looking for a conservative if a 695 00:42:36,880 --> 00:42:40,719 Speaker 9: little is going away right, Uh, they're looking for a conservative. 696 00:42:40,760 --> 00:42:46,200 Speaker 9: But I don't think Justice Whole is in their favor 697 00:42:46,320 --> 00:42:49,280 Speaker 9: because I think they're trying to find another person who 698 00:42:49,400 --> 00:42:54,200 Speaker 9: is more sophisticated than Justice Whole. If I may say, 699 00:42:54,400 --> 00:42:57,640 Speaker 9: may say that they wanted to find a person who 700 00:42:57,719 --> 00:43:02,520 Speaker 9: is definitely a conservative, but being able to rewrap the 701 00:43:02,640 --> 00:43:09,200 Speaker 9: message with academic legitimacy and to forge anin for majority 702 00:43:09,280 --> 00:43:11,719 Speaker 9: at the Court to push through their agenda. 703 00:43:12,800 --> 00:43:16,200 Speaker 2: Recently, Trump said he was considering Ted Cruz of Texas 704 00:43:16,239 --> 00:43:19,319 Speaker 2: for the next Supreme Court vacancy. If so, James Hoe 705 00:43:19,360 --> 00:43:21,960 Speaker 2: may be enjoying his lifetime post at the Fifth Circuit 706 00:43:22,000 --> 00:43:27,040 Speaker 2: for the foreseeable future. Hoe celebrated his fifty third birthday 707 00:43:27,080 --> 00:43:31,000 Speaker 2: on February twenty seventh. That means his legal philosophy will 708 00:43:31,000 --> 00:43:34,200 Speaker 2: shape gay and trans writes the limits of free speech, 709 00:43:34,520 --> 00:43:37,560 Speaker 2: who can buy firearms and where and how how much 710 00:43:37,640 --> 00:43:40,480 Speaker 2: autonomy women have over their bodies and what access they 711 00:43:40,520 --> 00:43:43,440 Speaker 2: will enjoy the healthcare and where the boundaries will be 712 00:43:43,520 --> 00:43:47,879 Speaker 2: drawn between church and state for years to come. Hoe 713 00:43:47,920 --> 00:43:50,080 Speaker 2: may not make it to the Supreme Court, but he 714 00:43:50,080 --> 00:43:52,719 Speaker 2: could still be the loudest voice on the scariest court 715 00:43:52,760 --> 00:43:57,359 Speaker 2: in America and shape the future forty million Americans in Texas, Louisiana, 716 00:43:57,440 --> 00:43:59,839 Speaker 2: and Mississippi for decades to come. 717 00:44:01,120 --> 00:44:03,840 Speaker 3: We'd like to thank our friend Steve Mason for providing 718 00:44:03,880 --> 00:44:06,520 Speaker 3: some of the voices today. This is Stephen maun Cholley 719 00:44:06,560 --> 00:44:07,799 Speaker 3: for it could Happen Here, And. 720 00:44:07,760 --> 00:44:10,560 Speaker 2: This is Michael Phillips. Until next time, Thanks for listening. 721 00:44:13,960 --> 00:44:16,480 Speaker 2: It Could Happen Here is a production of cool Zone Media. 722 00:44:16,640 --> 00:44:19,719 Speaker 4: For more podcasts from cool Zone Media, visit our website 723 00:44:19,760 --> 00:44:23,360 Speaker 4: coolzonmedia dot com, or check us out on the iHeartRadio app, 724 00:44:23,440 --> 00:44:26,480 Speaker 4: Apple Podcasts, or wherever you listen to podcasts. 725 00:44:26,760 --> 00:44:28,680 Speaker 9: You can now find sources for it could Happen Here, 726 00:44:28,719 --> 00:44:31,680 Speaker 9: listed directly in episode descriptions. Thanks for listening.