WEBVTT - The Scariest Court in America feat. Steven Monacelli & Dr. Michael Phillips 0:00:01.680 --> 0:00:05.680 Cold Media. 0:00:06.559 --> 0:00:09.280 I'm Michael Phillips, an historian and the author of a 0:00:09.360 --> 0:00:13.239 book about racism in Dallas called White Metropolis, and the 0:00:13.280 --> 0:00:16.880 co author, with longtime journalist Betsy Freoff, of the history 0:00:16.920 --> 0:00:19.919 of eugenics in Texas called The Purifying Knife. 0:00:20.120 --> 0:00:23.160 I'm Stephen Monchelli. I'm a journalist who specializes in covering 0:00:23.160 --> 0:00:26.360 political extremism and far right internet culture for The Texas Observer, 0:00:26.760 --> 0:00:30.440 The Barbed Wire and other publications. Today we'll be talking 0:00:30.520 --> 0:00:33.479 about the Fifth Circuit, and we'll start with a man 0:00:33.560 --> 0:00:36.519 named James Hope, who, on what might have been the 0:00:36.560 --> 0:00:39.400 biggest day of his judicial career so far, couldn't have 0:00:39.479 --> 0:00:41.040 picked a creepier setting. 0:00:41.600 --> 0:00:44.960 The fifty two year old's legal career has rocketed forward 0:00:45.040 --> 0:00:50.040 at light speed. Born in Taiwan and a graduate of Stanford, 0:00:50.440 --> 0:00:52.440 he signed up as an attorney for the white shoe 0:00:52.520 --> 0:00:56.640 law firm Gibson Dunn in California in two thousand. At 0:00:56.680 --> 0:01:00.000 age twenty seven. He joined a high powered legal team 0:01:00.000 --> 0:01:04.720 and that forever shaped the history of the United States. 0:01:04.720 --> 0:01:08.840 From NBC News in Washington, this is Meet the Press 0:01:09.200 --> 0:01:10.200 with Tim Russer. 0:01:11.600 --> 0:01:16.120 Our issues This Sunday, thirty six days after the election. 0:01:16.720 --> 0:01:20.039 Al Gore ends his campaign. For the sake of our 0:01:20.160 --> 0:01:22.680 unity as a people and the strength of our democracy, 0:01:23.319 --> 0:01:25.800 I offer my concession. George W. 0:01:25.880 --> 0:01:30.160 Bush will be the forty third President of the United States. 0:01:30.400 --> 0:01:32.920 I'm thankful to the American people for the great privilege 0:01:32.920 --> 0:01:36.360 of being able to serve as your next president. 0:01:37.760 --> 0:01:42.039 Young and almost entirely unknown outside of legal circles, James 0:01:42.040 --> 0:01:44.480 Hoe joined some of the most famous conservative lawyers in 0:01:44.520 --> 0:01:46.880 the country in the year two thousand to convince the 0:01:46.959 --> 0:01:50.680 United States Supreme Court to stop the hotly contested presidential 0:01:50.760 --> 0:01:54.640 vote count in Florida. That move elevated President George W. 0:01:54.720 --> 0:01:55.880 Bush to the White House. 0:01:56.800 --> 0:01:59.360 In this effort, James Hoe rubbed shoulders with right wing 0:01:59.440 --> 0:02:02.680 luminaries like the man who in five years would be 0:02:02.960 --> 0:02:05.840 the Chief Justice of the Supreme Court, John Roberts. 0:02:06.680 --> 0:02:11.480 Hoe rocketed to judicial superstardom. He clerked for Supreme Court 0:02:11.639 --> 0:02:14.960 Justice Clarence Thomas for a couple of years, then from 0:02:15.000 --> 0:02:18.120 two thousand and eight to twenty ten, he succeeded Ted 0:02:18.240 --> 0:02:22.800 Cruz as Solicitor General of Texas. There he handled appeals 0:02:22.840 --> 0:02:25.119 filed by the state in cases heard by the state 0:02:25.200 --> 0:02:28.760 Supreme Court and the U s Supreme Court. On January four, 0:02:28.880 --> 0:02:32.480 twenty eighteen, Hoe celebrated his next rapid climb up the 0:02:32.560 --> 0:02:35.799 judicial ladder when he has sworn as a newish judge 0:02:35.840 --> 0:02:38.800 on the United States Fifth Circuit Court of Appeals, which 0:02:38.840 --> 0:02:43.800 oversees federal cases that are originate in Texas, Mississippi, and Louisiana. 0:02:44.440 --> 0:02:47.639 Hooe's swearing in ceremony took place at the mansion of 0:02:47.720 --> 0:02:51.640 Dallas real estate billionaire Harlan Crowe. You've probably heard that 0:02:51.720 --> 0:02:54.760 name before because Crow has made news with the revelation 0:02:54.919 --> 0:02:58.440 that he lavished hundreds of thousands of dollars in gifts 0:02:58.480 --> 0:03:02.040 and favors on Supreme Court Judge Just Clarence Thomas, including 0:03:02.080 --> 0:03:05.160 cruises to Indonesian islands on the businessman's one hundred and 0:03:05.200 --> 0:03:08.080 sixty two foot super yacht and a one hundred and 0:03:08.160 --> 0:03:11.760 nineteen thousand dollars bible that once belonged to leading abolitionist 0:03:12.000 --> 0:03:15.880 Frederick Douglas. Crowe flew Thomas to Dallas on his private 0:03:15.919 --> 0:03:18.600 jet so the justice could swear in his former clerk. 0:03:19.200 --> 0:03:23.840 The surroundings included Crowe's unnerving souvenirs, once described on the 0:03:23.880 --> 0:03:25.840 program Inside Edition. 0:03:26.200 --> 0:03:29.600 Questions are being raised today about Supreme Court Justice Clarence 0:03:29.600 --> 0:03:34.320 Thomas's friendship with a billionaire who collects Nazi memorabilia. Published 0:03:34.320 --> 0:03:39.320 reports say Dallas tycoon Harlan Crowe's controversial collection includes Hitler's 0:03:39.320 --> 0:03:44.120 notorious autobiography Mind Komf, signed by Hitler, oil paintings by 0:03:44.160 --> 0:03:48.280 Hitler and Lennon Napkins embroidered with the Nazi swastika. The 0:03:48.320 --> 0:03:51.560 collection is housed at Crowe's mansion in Dallas. I can't 0:03:51.560 --> 0:03:54.880 get over the collection of Nazi memorabilia, said one guest 0:03:54.920 --> 0:03:57.400 who saw the Nazi treasure trove. You sort of just 0:03:57.560 --> 0:03:59.720 gasp when you walk into the room. 0:04:00.400 --> 0:04:03.800 The estate also includes what Crow has called the Garden 0:04:03.840 --> 0:04:08.560 of Evil, a collection of imposing statues of past authoritarian 0:04:08.640 --> 0:04:14.600 leaders like Vladimir Lenin, Joseph Stalin, Mao Zedung, Nikolai Chacchescu, 0:04:15.040 --> 0:04:19.360 the eccentric Romanian tyrant violently deposed in nineteen eighty nine, 0:04:19.760 --> 0:04:22.920 as well as a bust of Gavrilla Prinsep, the Bosnian 0:04:23.000 --> 0:04:26.880 Serb nationalist who triggered World War One with his assassination 0:04:27.520 --> 0:04:31.719 of Austrian Archduke Franz Ferdinand. Crow claims that his clutch 0:04:31.839 --> 0:04:34.920 is somehow a statement of his hatred for both communism 0:04:35.000 --> 0:04:40.200 and fascism. The creepy artwork perhaps foreshadowed Hoe's ominous career 0:04:40.360 --> 0:04:43.119 in the Fifth Circuit Court of Appeals. On that bench, 0:04:43.160 --> 0:04:46.680 he has become infamous for weirdly written and extreme opinions 0:04:46.880 --> 0:04:48.920 in which he has suggested that the children of migrants 0:04:48.960 --> 0:04:51.919 might not be eligible for birthright citizenship because the country 0:04:52.000 --> 0:04:56.360 is being quote invaded, and that abortion actually somehow injures 0:04:56.400 --> 0:05:01.000 doctors because they are denied the intense pleasure of delivering babies. 0:05:01.680 --> 0:05:03.960 Those antics might lead him to one day occupy a 0:05:03.960 --> 0:05:06.920 seat on the United States Supreme Court, potentially succeeding Thomas 0:05:07.040 --> 0:05:10.400 or Samuel Alito, the two oldest justices on the nation's 0:05:10.480 --> 0:05:13.560 highest bench. In this episode, we'll look at the career 0:05:13.680 --> 0:05:17.640 of Judge James Hoe, his alarming right wing judicial activism, 0:05:18.040 --> 0:05:20.920 and the strange history of the Fifth Circuit Court of Appeals, 0:05:21.279 --> 0:05:24.360 which since the Reagan administration has transformed for one of 0:05:24.360 --> 0:05:27.640 the most liberal judicial bodies in the country too, perhaps 0:05:27.640 --> 0:05:29.520 the scariest court in America. 0:05:29.880 --> 0:05:32.919 Given its current reactionary reputation. It's a bit ironic. The 0:05:32.960 --> 0:05:36.039 Fifth Circuit Court convenes in a New Orleans Courthouse named 0:05:36.080 --> 0:05:40.320 after John Minor Wisdom, a New Orleans native who formed 0:05:40.320 --> 0:05:43.360 a critical part of a quartet of liberal judges known 0:05:43.400 --> 0:05:46.480 simply as the Four who in the nineteen fifties and 0:05:46.600 --> 0:05:51.000 nineteen sixties issued a series of revolutionary rulings that advanced 0:05:51.000 --> 0:05:55.839 the civil rights movement. President Dwight Eisenhower pointed Wisdom to 0:05:55.880 --> 0:05:59.080 the bench in nineteen fifty seven. He quickly formed an alliance 0:05:59.040 --> 0:06:00.920 with three other liberal judge is on the Fifth Circuit, 0:06:01.400 --> 0:06:04.640 Albert P. Tuttle of Georgia, John R. Brown of Texas, 0:06:05.080 --> 0:06:09.120 and Richard T. Rivis of Alabama. Rivers was the only 0:06:09.160 --> 0:06:11.599 Democrat on the squad that came to be known as 0:06:11.680 --> 0:06:15.640 the Fifth forour these liberals typically prevailed over the conservatives 0:06:15.800 --> 0:06:18.359 serving on the Fifth Circuit, and at that point, the 0:06:18.360 --> 0:06:21.080 Fifth Circuit heard cases from states that spread across the 0:06:21.080 --> 0:06:26.120 core of the one time Confederacy, including Louisiana, Florida, Alabama, Mississippi, Texas, 0:06:26.160 --> 0:06:29.320 and Georgia. This placed the Fifth boar on the front 0:06:29.360 --> 0:06:32.480 lines of the civil rights struggle. In nineteen fifty eight, 0:06:32.880 --> 0:06:36.200 the Fifth Circuit began shipping away at Jim Crow. The 0:06:36.240 --> 0:06:39.240 court heard the case of Joe Dorsey, Junior of New 0:06:39.320 --> 0:06:43.599 Orleans challenging the Louisiana law that outlawed matches between black 0:06:43.600 --> 0:06:48.279 and white boxers. Wisdom wrote the majority opinion, which declared 0:06:48.279 --> 0:06:51.680 such legislation made a mockery of the equal protection clause 0:06:51.720 --> 0:06:56.400 of the Fourteenth Amendment to the United States Constitution. That opinion, 0:06:56.920 --> 0:06:59.719 like many Wisdom wrote, would be upheld the following year 0:06:59.720 --> 0:07:02.479 by the Supreme Court that was presided over by Chief 0:07:02.640 --> 0:07:07.520 Justice Earl Warren. Louisiana integrated boxing matches, but for years 0:07:07.560 --> 0:07:12.400 outside the ring, the arenas divided into black and white seating. 0:07:13.440 --> 0:07:16.440 In the coming years, the Fifth Circuit forced Saint Helen 0:07:16.480 --> 0:07:19.640 Parrish and Louisiana to reopen their schools after that school 0:07:19.640 --> 0:07:23.320 board voted to close all campuses to prevent integration. The 0:07:23.320 --> 0:07:26.400 Fifth Circuit Court ordered the University of Mississippi to admit 0:07:26.440 --> 0:07:30.600 an African American student, James Meredith. In his opinion, Wisdom 0:07:30.640 --> 0:07:34.040 wrote that Ole miss as it's known, had engaged in 0:07:34.120 --> 0:07:39.560 a carefully calculated campaign of delay, harassment, and masterly inactivity. 0:07:40.240 --> 0:07:43.320 Riots broke out as federal troops had to enforce the order. 0:07:48.840 --> 0:07:49.400 James H. 0:07:49.520 --> 0:07:53.160 Meredith is formerly enrolled at the University of Mississippi, ending 0:07:53.200 --> 0:07:56.880 one chapter in the federal government's efforts to desegregate the university. 0:07:57.320 --> 0:08:00.240 The town of Oxford is an armed can following ads 0:08:00.280 --> 0:08:03.080 that accompany the registration of the first Negro in the 0:08:03.200 --> 0:08:06.400 university's one hundred and eighteen year history. Much of this 0:08:06.480 --> 0:08:10.600 film record was destroyed when our cameraman, Gordon Yoder, was attacked, 0:08:10.880 --> 0:08:13.560 but he did salvage pictures of Governor Ross Barnett at 0:08:13.600 --> 0:08:16.680 the scene. The governor fought the court order long and 0:08:16.760 --> 0:08:20.920 bitterly before modifying his stad saying Mississippi was overpowered by 0:08:20.920 --> 0:08:28.160 the federal government. President Kennedy appealed to the students and 0:08:28.200 --> 0:08:30.560 to the people of the state to comply peacefully with 0:08:30.640 --> 0:08:33.360 the law and bring the crisis to an end. Even 0:08:33.400 --> 0:08:35.800 as he talked, riots were breaking out in Oxford. 0:08:37.440 --> 0:08:40.400 Americans are free, in sure to disagree with the law, 0:08:41.080 --> 0:08:44.720 but not to disobey it. For any government of laws 0:08:44.760 --> 0:08:49.040 and not of men, No man, however prominent. 0:08:49.160 --> 0:08:53.240 Or powerful, and no mob, however. 0:08:53.040 --> 0:08:58.120 Unruly or boisterous, is entitled to defy a court of law. 0:08:59.120 --> 0:09:01.680 In nineteen sixty v three of the Fifth Circuit ordered 0:09:01.720 --> 0:09:06.560 the desegregation of community centers cultural centers, playgrounds, and public parks. 0:09:07.160 --> 0:09:10.400 The next year, the court ruled the jury selection system 0:09:10.679 --> 0:09:14.320 in Orleans Paris, where as Wisdom noted, no black had 0:09:14.360 --> 0:09:17.360 ever set on a grand jury or trial jury panel, 0:09:17.720 --> 0:09:21.440 violated the Constitution. Two years after that, the Fifth Circuit 0:09:21.559 --> 0:09:26.240 overturned Louisiana's photo registration literacy tests, which required as citizen 0:09:26.280 --> 0:09:29.320 to pass, in the judgment of white officials, a written 0:09:29.360 --> 0:09:34.560 test on the Constitution. Such laws had long disenfranchised impoverished 0:09:34.600 --> 0:09:36.160 African Americans and whites. 0:09:36.840 --> 0:09:40.880 Perhaps Wisdom's most significant opinion came with the nineteen sixty 0:09:40.920 --> 0:09:44.320 eight United States v. Jefferson case, which blocked states from 0:09:44.400 --> 0:09:47.440 avoiding compliance with the Brown v. Board of Education decision 0:09:47.679 --> 0:09:50.920 by setting up so called quote school choice plans in 0:09:50.960 --> 0:09:54.200 which parents allegedly freely chose to send their children to 0:09:54.440 --> 0:09:55.480 segregated schools. 0:09:55.920 --> 0:10:01.680 Wisdom wrote, the Constitution is both color blind and conscious. 0:10:02.480 --> 0:10:07.439 To avoid conflict with the equal Protection clause, a classification 0:10:07.640 --> 0:10:12.199 that denies a benefit, causes harm, or imposes a burden 0:10:12.640 --> 0:10:16.520 must not be based on race. In that sense, the 0:10:16.559 --> 0:10:21.400 Constitution is color blind, but the Constitution is color conscious 0:10:21.800 --> 0:10:27.280 to prevent discrimination from being perpetuated and to undo the 0:10:27.320 --> 0:10:29.560 effects of past discrimination. 0:10:30.440 --> 0:10:33.839 Quoting a phrase that would later ignite fierce white backlash 0:10:33.880 --> 0:10:38.040 against civil rights North and South, Wisdom said school systems 0:10:38.080 --> 0:10:41.600 needed to move beyond ostensibly not discriminating and to take 0:10:41.720 --> 0:10:46.760 quote affirmative action to bring about a unitary, non racial system. 0:10:47.360 --> 0:10:50.760 That phrase would provide a legal foundation for school bussing 0:10:51.080 --> 0:10:55.000 as a means of genuinely integrating schools, and also introduce 0:10:55.080 --> 0:10:59.400 the concept of affirmative action hiring practices in other stubborn 0:10:59.400 --> 0:11:01.080 aspects of racial exclusion. 0:11:01.679 --> 0:11:04.640 The Fifth Circuit's record of judicial progressivism continued through the 0:11:04.720 --> 0:11:08.120 nineteen seventies. A nineteen seventy six decision by the Fifth Circuit, 0:11:08.160 --> 0:11:11.680 for instance, required public colleges and universities in Texas to 0:11:11.760 --> 0:11:16.520 recognize gay student organizations. Meanwhile, moderate Republicans tried to persuade 0:11:16.559 --> 0:11:20.560 Richard Nixon to nominate Wisdom for the United States Supreme Court. However, 0:11:20.640 --> 0:11:23.720 Attorney General John Mitchell, who later went to prison for 0:11:23.720 --> 0:11:27.520 his role in the Watergate scandal, squashed the idea. He 0:11:27.559 --> 0:11:30.520 complained that the judge was a damn left winger who 0:11:30.559 --> 0:11:33.760 would specially be as bad as the famously liberal Chief 0:11:33.920 --> 0:11:38.040 Justice Warren. President Clinton would give was then the Presidential 0:11:38.080 --> 0:11:41.400 Medal of Freedom in nineteen ninety three. Wisdom died six 0:11:41.480 --> 0:11:45.880 years later. If he miraculously returned, Wisdom would not recognize 0:11:45.920 --> 0:11:47.600 the appeals court that he spent so much of his 0:11:47.679 --> 0:11:50.440 life serving. We'll talk about the transformation of the Fifth 0:11:50.440 --> 0:11:53.640 Circuit of Appeals, the extreme and disturbing decisions that has 0:11:53.679 --> 0:11:55.880 made since the start of the Trump era, and the 0:11:55.960 --> 0:11:59.040 career of one of that court's most infamous judges when 0:11:59.040 --> 0:12:11.040 we come back from our hope fully less infamous sponsors. 0:12:12.720 --> 0:12:16.880 In nineteen eighty one, the federal judiciary was reorganized. The 0:12:16.880 --> 0:12:20.520 Fifth Circuit Court now heard appeals only from Mississippi, Louisiana, 0:12:20.559 --> 0:12:24.319 and Texas. A new eleventh Circuit court now here's cases 0:12:24.320 --> 0:12:27.960 from Alabama, Georgia, and Florida. We should provide a hopefully 0:12:28.000 --> 0:12:31.760 brief civics lesson here. The Fifth Court consists of seventeen 0:12:31.840 --> 0:12:34.040 active judges and nine senior judges. 0:12:34.600 --> 0:12:35.680 When a side. 0:12:35.640 --> 0:12:37.880 Loses a case in a federal district court, they can 0:12:37.920 --> 0:12:40.280 appeal to a circuit court, where the case is heard 0:12:40.280 --> 0:12:43.080 by a three judge panel. In some cases, if one 0:12:43.120 --> 0:12:45.199 side disagrees with the judgment of the panel, they may 0:12:45.240 --> 0:12:47.880 appeal the decision to the full judicial Court. 0:12:48.520 --> 0:12:52.400 Among the act of judges, those appointed by Republican presidents 0:12:52.440 --> 0:12:55.920 outnumber those appointed by Democrats by a margin of twelve 0:12:56.000 --> 0:12:59.160 to five. Donald Trump applented more than a third of 0:12:59.200 --> 0:13:03.440 these judges, six in all, each of course, could serve 0:13:03.520 --> 0:13:06.080 on the court for the rest of their life. The 0:13:06.080 --> 0:13:09.400 Fifth Circuit also has eight senior judges who are semi 0:13:09.440 --> 0:13:13.560 retired but preside over a limited number of cases. Six 0:13:13.640 --> 0:13:17.400 of them were also appointed by Republican presidents, stretching back 0:13:17.440 --> 0:13:18.360 to Ronald Reagan. 0:13:19.120 --> 0:13:22.960 Even in that hyper conservative company, James Hoe has stood out. 0:13:23.640 --> 0:13:26.720 Mike Davis, the president of the Pro Trump Article three Project, 0:13:27.160 --> 0:13:30.600 a group dedicated to pushing federal courts further right, has said, 0:13:30.679 --> 0:13:35.200 quote on every crucial but controversial legal issue, Jim Hoe 0:13:35.240 --> 0:13:37.240 is constantly the tip of the spear. 0:13:38.240 --> 0:13:41.920 It has been a cliche among the American right wingers 0:13:41.920 --> 0:13:44.800 that liberal judges from the time of Franklin Roosevelt Lawan 0:13:45.320 --> 0:13:49.080 had become judicial activists for abusing their positions on the 0:13:49.080 --> 0:13:53.440 bench to advance their political agendas rather than impartially ruling 0:13:53.440 --> 0:13:59.000 on the law. Calling balls and strikes. Hoe's open political advocacy, however, 0:13:59.080 --> 0:14:02.720 has raised no LA arms for those saying presume advocates 0:14:02.720 --> 0:14:04.160 for judicial neutrality. 0:14:04.920 --> 0:14:08.400 While he served as Texas's Solicitor General, Hoe did pro 0:14:08.520 --> 0:14:12.120 bono work for the First Liberty Institute, a Christian right 0:14:12.240 --> 0:14:16.480 organization headquartered in Plano, Texas, just north of Dallas, that 0:14:16.600 --> 0:14:19.160 won a case for a Washington State high school football 0:14:19.200 --> 0:14:22.520 coach who was fired because he violated school policy by 0:14:22.600 --> 0:14:25.800 leading his team in prayer after each game. The group 0:14:25.840 --> 0:14:29.240 has also represented bakers who refused to make wedding cakes 0:14:29.320 --> 0:14:30.520 for same sex couples. 0:14:31.120 --> 0:14:33.760 As a judge, Hoe led a boycott of legal clerks 0:14:33.800 --> 0:14:37.760 who graduated from Yale Law School to punish that institution 0:14:37.960 --> 0:14:42.680 for its supposed leftist cancel culture and intolerance and conservative views. 0:14:43.400 --> 0:14:46.760 During his speech to the far right Heritage Foundation, the 0:14:46.800 --> 0:14:50.680 authors of Project twenty twenty five, Hoe ridiculed lawyers with 0:14:51.120 --> 0:14:56.440 fancy credentials, fancy law schools, fancy clerkships, fancy law firms, 0:14:56.440 --> 0:15:00.560 and government jobs. He claimed that issued liberal opinions for 0:15:00.600 --> 0:15:04.680 no other purpose than winning popularity. Here young conservatives to 0:15:04.720 --> 0:15:09.040 assert themselves against the sposed popularity of political correctness. 0:15:09.800 --> 0:15:11.840 In addition to serving on the bench, Ho could be 0:15:11.880 --> 0:15:15.840 considered an activist particularly on culture war issues like abortion. 0:15:16.520 --> 0:15:20.360 He's condemned abortion as the quote immoral, tragic, and violent 0:15:20.400 --> 0:15:24.120 taking of innocent human life. In twenty eighteen, he upheld 0:15:24.120 --> 0:15:26.600 a Texas law that required the cremation or burial of 0:15:26.600 --> 0:15:30.680 fetal remains a potentially costly burden for women receiving medical treatment, 0:15:31.360 --> 0:15:34.000 and the state of Texas argued that any potential financial 0:15:34.000 --> 0:15:37.400 burdens to women or clinics were irrelevant since the Texas 0:15:37.400 --> 0:15:39.880 Conference of Catholic Bishops made a pledge to bury the 0:15:39.960 --> 0:15:43.280 remains for low cost or even for free. Such a promise, 0:15:43.320 --> 0:15:45.160 of course, was not legally binding. 0:15:45.680 --> 0:15:48.160 A district court overturned the law, but Hoe, in the 0:15:48.160 --> 0:15:54.040 fifths Circuit reinstated it, arguing that coarse burial protected religious 0:15:54.040 --> 0:15:58.880 freedom of the Catholic bishops. Quote. The First Amendment expressly 0:15:59.000 --> 0:16:03.200 guarantees the free exercise religion, including the right of bishops 0:16:03.200 --> 0:16:07.240 to express their profound objection to the moral tragedy of abortion, 0:16:07.400 --> 0:16:12.000 Hoe wrote, Texas still requires that fetal remains receive burial 0:16:12.240 --> 0:16:16.280 or cremation. As we'll explain later, it's not only on 0:16:16.320 --> 0:16:18.400 the issue of abortion that Hoe has staked out in 0:16:18.480 --> 0:16:22.760 extreme position. In Man's First successions. The Fifth Circuit Court, 0:16:22.760 --> 0:16:25.760 by an eight to seven vote, narrowly avoided overturning a 0:16:25.800 --> 0:16:31.000 federal gun law that prohibited interstate gun sales. Hoe offered 0:16:31.000 --> 0:16:34.760 a bitter descent, quoting his mentor Clarence Thomas and complaining 0:16:35.200 --> 0:16:38.400 that in spite of the wide open access to firearms 0:16:38.440 --> 0:16:41.840 in this country, the Second Amendment had become quote, a 0:16:41.960 --> 0:16:46.080 second class right. In his opinion, how ridiculed advocates of 0:16:46.120 --> 0:16:50.520 gun control is suffering from hoplophobia, the irrational fear of guns. 0:16:51.240 --> 0:16:54.920 Hoe in the entire Fifth Circuit achieved national infamy after 0:16:54.960 --> 0:16:57.400 the Supreme Court raised almost half a century of abortion 0:16:57.520 --> 0:17:00.320 rights when it overturned the Roe Vwaid decision in the 0:17:00.360 --> 0:17:04.000 Dobbs v. Women's Health Organization case on June twenty fourth, 0:17:04.119 --> 0:17:06.680 twenty twenty two. A little more than a year after 0:17:06.720 --> 0:17:10.080 that landmark case, on August sixteenth, twenty twenty three, the 0:17:10.080 --> 0:17:14.040 Fifth Circuit upheld tightened access for women to mifipristone, the 0:17:14.160 --> 0:17:16.640 so called abortion pill, which accounts for more than half 0:17:16.680 --> 0:17:20.240 of all terminated pregnancies in the United States. Originally approved 0:17:20.240 --> 0:17:22.840 by the Food and Drug Administration in two thousand, but 0:17:22.960 --> 0:17:26.240 only for prescription by hospitals and other medical facilities. The 0:17:26.320 --> 0:17:29.520 FDA expanded access to the medication in twenty sixteen and 0:17:29.560 --> 0:17:33.840 gave doctors the right to directly prescribe mifipristone in response 0:17:33.880 --> 0:17:36.280 to the COVID nineteen pandemic. Starting in twenty twenty one, 0:17:36.320 --> 0:17:39.520 Women could receive it through the mail in twenty twenty. 0:17:39.520 --> 0:17:43.959 For an anti abortion organization, the Alliance or Hippocratic Medicine 0:17:44.400 --> 0:17:48.960 intentionally incorporated in twenty twenty two and Amarillo, which placed 0:17:48.960 --> 0:17:52.399 it in the jurisdiction of the famously anti abortion Federal 0:17:52.440 --> 0:17:57.960 District Judge Matthew J. Kasmeric, like Judge Hoe, Cosmeric, belonged 0:17:58.000 --> 0:18:01.320 to the First Liberty Institute. While being considered for the 0:18:01.359 --> 0:18:05.119 federal bench, he unsuccessfully tried to conceal his authorship of 0:18:05.200 --> 0:18:08.600 legal articles on gay rights he thought might jeopardize approval 0:18:08.600 --> 0:18:12.440 of his domination by the US Senate. Chasmeric has described 0:18:12.480 --> 0:18:16.200 gay and trans people as mentally disordered. The Alliance for 0:18:16.280 --> 0:18:20.359 Hippocratic Medicine filed student Caasmerics Court seeking to overturn the 0:18:20.400 --> 0:18:24.320 FDA's approval of mythipriss Stone, even though decades of research 0:18:24.400 --> 0:18:28.680 had demonstrated its safety and its effectiveness for treating Cushing syndrome, 0:18:28.720 --> 0:18:30.400 a severe endocrine disorder. 0:18:31.280 --> 0:18:33.119 None of the doctors in the Alliance had ever been 0:18:33.200 --> 0:18:34.960 involved in a medical case in which the use of 0:18:34.960 --> 0:18:38.800 mythipresstowne had been considered. In his opinion, Kasmeric showed his 0:18:38.880 --> 0:18:42.439 disdain for medical personnel providing women with reproductive care, referring to 0:18:42.480 --> 0:18:46.280 them as quote abortionists and called terminating pregnancy through medication 0:18:46.480 --> 0:18:49.320 quote starving the unborn human until death. 0:18:49.920 --> 0:18:54.119 Courts require that parties have what just is called standing 0:18:54.320 --> 0:18:57.360 in order to file a lawsuit. That means, for instance, 0:18:57.359 --> 0:19:00.280 that one party has been in some way directly inured 0:19:00.280 --> 0:19:03.680 by the other party. President Joe Biden's food and Drug 0:19:03.680 --> 0:19:06.840 administer I should question how the doctors and the Alliance 0:19:06.880 --> 0:19:10.080 for Hippocratic Medicine had in any way been directly harmed 0:19:10.080 --> 0:19:14.320 because women have access to abortion medications. Chasmeric found a 0:19:14.320 --> 0:19:18.000 fans full way to grant the Alliance a right to sue. 0:19:18.359 --> 0:19:22.359 He claimed that treating the rare complications from mitha pristone 0:19:22.440 --> 0:19:26.600 overwhelmed hospitals in placed quote enormous pressure and stress on 0:19:26.680 --> 0:19:31.680 the doctors during emergencies and complications. After granting the Alliance 0:19:31.760 --> 0:19:36.160 standing Chasmeric issued a preliminary injunction suspending the FDA's approval 0:19:36.160 --> 0:19:38.720 of the drug. The decision would go into effect in 0:19:38.760 --> 0:19:40.800 seven days in order to give the federal government a 0:19:40.880 --> 0:19:44.080 chance to file an appeal. In his decision, Chasmeric cited 0:19:44.119 --> 0:19:46.960 two studies that claimed the drug was harmful, but both 0:19:46.960 --> 0:19:50.600 had been retracted by a medical journal. In effect, Kasmeric 0:19:50.640 --> 0:19:55.040 had banned mifipristone nationwide. The United States Justice Department and 0:19:55.119 --> 0:19:59.160 dan Co Laboratories. MiFi pristone's manufacturer appealed, and the case 0:19:59.200 --> 0:20:04.160 went to the Fifth Circuit. Judicial chaos surrounding the status 0:20:04.160 --> 0:20:08.280 of myth for pristone reigned within hours, as ABC seven 0:20:08.600 --> 0:20:10.440 in Los Angeles reported. 0:20:10.320 --> 0:20:14.040 A judicial bombshell involving abortion that could have an impact 0:20:14.040 --> 0:20:17.960 in all fifty states. A Texas federal judge revoking FDA 0:20:18.080 --> 0:20:21.040 approval of an abortion pill that's been used for more 0:20:21.080 --> 0:20:24.200 than twenty years, but another federal judge in Washington State 0:20:24.280 --> 0:20:28.159 then issuing a contradictory ruling, setting up another major battle 0:20:28.200 --> 0:20:30.840 over a woman's right to choose. I went Ashoo's reporter 0:20:30.920 --> 0:20:34.440 Amy Powell, joining US live in studio with more tonight, Amy. 0:20:34.480 --> 0:20:37.080 And Michelle This is causing a lot of concern. The 0:20:37.160 --> 0:20:39.800 reversal of Roe versus Weighed by the Supreme Court was 0:20:39.840 --> 0:20:42.600 supposed to mean that abortion laws would be left up 0:20:42.600 --> 0:20:46.359 to individual states, But today a Texas federal judge issued 0:20:46.400 --> 0:20:49.400 a ruling that could end access to an abortion pill 0:20:49.520 --> 0:20:53.560 in all fifty states. Shortly after the Texas judge issued 0:20:53.600 --> 0:20:57.000 his decision, a judge in Washington State issued a ruling 0:20:57.280 --> 0:21:00.600 ordering the FDA to make no changes to the availability 0:21:00.800 --> 0:21:04.320 of MiFi pristone. Those conflicting orders mean this case is 0:21:04.560 --> 0:21:07.240 likely to end up in the Supreme Court. 0:21:08.000 --> 0:21:10.520 The MiFi pristone case went to the Fifth Circuit, where 0:21:10.560 --> 0:21:15.040 Judge Ho would write an opinion critics characterized as disturbing, baffling, 0:21:15.320 --> 0:21:18.160 and bizarre. We'll talk about what happened in the MiFi 0:21:18.160 --> 0:21:21.480 pristone case and how Judge Hoe, an immigrant himself, has 0:21:21.480 --> 0:21:24.159 suggested that the children of migrants might not be eligible 0:21:24.200 --> 0:21:27.640 for birthright citizenship because the United States is, in his words, 0:21:27.800 --> 0:21:30.719 being invaded. But first we'll hear some, hopefully not two 0:21:30.760 --> 0:21:32.680 bizarre messages from our sponsors. 0:21:43.280 --> 0:21:46.320 When the Fifth Circuit heard the appeal of Kasmeric's ruling, 0:21:46.640 --> 0:21:49.920 Hoe didn't recuse himself from the case, even though his wife, Allison, 0:21:50.040 --> 0:21:54.000 a lawyer, has repeatedly appeared at events sponsored by the 0:21:54.040 --> 0:21:57.960 Alliance Defending Freedom, one of the litigants, and even receives 0:21:58.000 --> 0:22:02.400 speaking fees from the organization. Hoe brushed off this obvious. 0:22:02.040 --> 0:22:06.040 Conflict of interest on August sixteenth, twenty twenty three. That 0:22:06.080 --> 0:22:09.720 court didn't completely uphold Chismeric's ruling, but it did impose 0:22:09.800 --> 0:22:13.440 numerous restrictions on the abortion pill called MiFi Pristown, claiming 0:22:13.440 --> 0:22:16.359 that the FDA didn't fully consider its potential health risks. 0:22:17.280 --> 0:22:19.879 If the Supreme Court had upheld the Fifth Circuit's opinion, 0:22:20.320 --> 0:22:22.640 women would not have been allowed to receive a prescription 0:22:22.640 --> 0:22:25.840 through the mail after online medical appointments. They would have 0:22:25.880 --> 0:22:29.240 been able to receive the prescription only after a direct 0:22:29.320 --> 0:22:31.960 visit with a doctor and after three in person follow 0:22:32.040 --> 0:22:35.040 up appointments. The window in which women would have been 0:22:35.040 --> 0:22:37.160 allowed to take miphi pristown would have been cut from 0:22:37.280 --> 0:22:40.240 seventy days of pregnancy to about forty nine. 0:22:41.200 --> 0:22:44.840 Hoe wanted to go much further than the Fifth Circuit's majority. 0:22:45.000 --> 0:22:47.879 He wanted to rescind the FDA's approval a myth for 0:22:47.960 --> 0:22:50.439 press though, which would have removed the drug from the 0:22:50.440 --> 0:22:54.560 market entirely. When judges agree with a majority on a panel, 0:22:54.600 --> 0:22:57.280 they can write a concurring opinion that gives them a 0:22:57.359 --> 0:23:00.840 chance to grand stand about a Case's what Hoe did 0:23:00.880 --> 0:23:04.280 in his concurrence when he bitterly complained that some believed 0:23:04.280 --> 0:23:07.159 that quote no one should ever question the FDA. 0:23:08.160 --> 0:23:10.879 Hoe then asked the public to pity the obstetricians he 0:23:10.920 --> 0:23:14.840 claimed suffer because of women's abortion rights. Hoe drew on 0:23:14.960 --> 0:23:17.359 environmental case law, which acknowledges that a member of the 0:23:17.359 --> 0:23:20.920 public might believe that they've suffered a loss when, for instance, 0:23:21.080 --> 0:23:25.280 a park is destroyed because it is the location of 0:23:25.600 --> 0:23:28.439 a new mining operation, and then they can sue on 0:23:28.520 --> 0:23:31.760 that basis. Hoe argued that doctors could suffer the same 0:23:31.800 --> 0:23:35.720 sort of damages when a pregnancy is medically ended. In 0:23:35.760 --> 0:23:38.520 his concurrence on MIPH Pristowin, Hoe wrote the following. 0:23:39.080 --> 0:23:42.639 Unborn babies are a source of profound joy for those 0:23:42.680 --> 0:23:48.280 who view them. Expectant parents eagerly share ultrasound photos with 0:23:48.440 --> 0:23:52.520 loved ones, friends and family, cheer at the sight of 0:23:52.560 --> 0:23:57.080 an unborn child, and doctor's delight in working with their 0:23:57.200 --> 0:24:02.680 unborn patients, and experience an esthetic injury when they are aborted. 0:24:03.800 --> 0:24:06.680 Leo Yu is an assistant professor of law at the 0:24:06.760 --> 0:24:11.359 University of Massachusetts at Dartmouth who specializes in civil rights law. 0:24:12.000 --> 0:24:15.879 You actually received law degrees in two countries, his native 0:24:15.960 --> 0:24:19.600 China and in the United States at Southern Methodist University 0:24:19.600 --> 0:24:22.720 in Dallas. While he lived in Texas, he lived under 0:24:22.760 --> 0:24:26.040 the jurisdiction of the Fifth Circuit and saw close hand 0:24:26.080 --> 0:24:29.280 the legal chaos. The Fifth Circuit is created in the 0:24:29.280 --> 0:24:33.240 states of Texas, Louisiana, Mississippi. In twenty twenty one, he 0:24:33.320 --> 0:24:37.879