Speaker 1: Cold Media.
Speaker 2: I'm Michael Phillips, an historian and the author of a
Speaker 2: book about racism in Dallas called White Metropolis, and the
Speaker 2: co author, with longtime journalist Betsy Freoff, of the history
Speaker 2: of eugenics in Texas called The Purifying Knife.
Speaker 3: I'm Stephen Monchelli. I'm a journalist who specializes in covering
Speaker 3: political extremism and far right internet culture for The Texas Observer,
Speaker 3: The Barbed Wire and other publications. Today we'll be talking
Speaker 3: about the Fifth Circuit, and we'll start with a man
Speaker 3: named James Hope, who, on what might have been the
Speaker 3: biggest day of his judicial career so far, couldn't have
Speaker 3: picked a creepier setting.
Speaker 2: The fifty two year old's legal career has rocketed forward
Speaker 2: at light speed. Born in Taiwan and a graduate of Stanford,
Speaker 2: he signed up as an attorney for the white shoe
Speaker 2: law firm Gibson Dunn in California in two thousand. At
Speaker 2: age twenty seven. He joined a high powered legal team
Speaker 2: and that forever shaped the history of the United States.
Speaker 4: From NBC News in Washington, this is Meet the Press
Speaker 4: with Tim Russer.
Speaker 3: Our issues This Sunday, thirty six days after the election.
Speaker 2: Al Gore ends his campaign. For the sake of our
Speaker 2: unity as a people and the strength of our democracy,
Speaker 2: I offer my concession. George W.
Speaker 5: Bush will be the forty third President of the United States.
Speaker 1: I'm thankful to the American people for the great privilege
Speaker 1: of being able to serve as your next president.
Speaker 3: Young and almost entirely unknown outside of legal circles, James
Speaker 3: Hoe joined some of the most famous conservative lawyers in
Speaker 3: the country in the year two thousand to convince the
Speaker 3: United States Supreme Court to stop the hotly contested presidential
Speaker 3: vote count in Florida. That move elevated President George W.
Speaker 2: Bush to the White House.
Speaker 3: In this effort, James Hoe rubbed shoulders with right wing
Speaker 3: luminaries like the man who in five years would be
Speaker 3: the Chief Justice of the Supreme Court, John Roberts.
Speaker 2: Hoe rocketed to judicial superstardom. He clerked for Supreme Court
Speaker 2: Justice Clarence Thomas for a couple of years, then from
Speaker 2: two thousand and eight to twenty ten, he succeeded Ted
Speaker 2: Cruz as Solicitor General of Texas. There he handled appeals
Speaker 2: filed by the state in cases heard by the state
Speaker 2: Supreme Court and the U s Supreme Court. On January four,
Speaker 2: twenty eighteen, Hoe celebrated his next rapid climb up the
Speaker 2: judicial ladder when he has sworn as a newish judge
Speaker 2: on the United States Fifth Circuit Court of Appeals, which
Speaker 2: oversees federal cases that are originate in Texas, Mississippi, and Louisiana.
Speaker 3: Hooe's swearing in ceremony took place at the mansion of
Speaker 3: Dallas real estate billionaire Harlan Crowe. You've probably heard that
Speaker 3: name before because Crow has made news with the revelation
Speaker 3: that he lavished hundreds of thousands of dollars in gifts
Speaker 3: and favors on Supreme Court Judge Just Clarence Thomas, including
Speaker 3: cruises to Indonesian islands on the businessman's one hundred and
Speaker 3: sixty two foot super yacht and a one hundred and
Speaker 3: nineteen thousand dollars bible that once belonged to leading abolitionist
Speaker 3: Frederick Douglas. Crowe flew Thomas to Dallas on his private
Speaker 3: jet so the justice could swear in his former clerk.
Speaker 3: The surroundings included Crowe's unnerving souvenirs, once described on the
Speaker 3: program Inside Edition.
Speaker 5: Questions are being raised today about Supreme Court Justice Clarence
Speaker 5: Thomas's friendship with a billionaire who collects Nazi memorabilia. Published
Speaker 5: reports say Dallas tycoon Harlan Crowe's controversial collection includes Hitler's
Speaker 5: notorious autobiography Mind Komf, signed by Hitler, oil paintings by
Speaker 5: Hitler and Lennon Napkins embroidered with the Nazi swastika. The
Speaker 5: collection is housed at Crowe's mansion in Dallas. I can't
Speaker 5: get over the collection of Nazi memorabilia, said one guest
Speaker 5: who saw the Nazi treasure trove. You sort of just
Speaker 5: gasp when you walk into the room.
Speaker 2: The estate also includes what Crow has called the Garden
Speaker 2: of Evil, a collection of imposing statues of past authoritarian
Speaker 2: leaders like Vladimir Lenin, Joseph Stalin, Mao Zedung, Nikolai Chacchescu,
Speaker 2: the eccentric Romanian tyrant violently deposed in nineteen eighty nine,
Speaker 2: as well as a bust of Gavrilla Prinsep, the Bosnian
Speaker 2: Serb nationalist who triggered World War One with his assassination
Speaker 2: of Austrian Archduke Franz Ferdinand. Crow claims that his clutch
Speaker 2: is somehow a statement of his hatred for both communism
Speaker 2: and fascism. The creepy artwork perhaps foreshadowed Hoe's ominous career
Speaker 2: in the Fifth Circuit Court of Appeals. On that bench,
Speaker 2: he has become infamous for weirdly written and extreme opinions
Speaker 2: in which he has suggested that the children of migrants
Speaker 2: might not be eligible for birthright citizenship because the country
Speaker 2: is being quote invaded, and that abortion actually somehow injures
Speaker 2: doctors because they are denied the intense pleasure of delivering babies.
Speaker 2: Those antics might lead him to one day occupy a
Speaker 2: seat on the United States Supreme Court, potentially succeeding Thomas
Speaker 2: or Samuel Alito, the two oldest justices on the nation's
Speaker 2: highest bench. In this episode, we'll look at the career
Speaker 2: of Judge James Hoe, his alarming right wing judicial activism,
Speaker 2: and the strange history of the Fifth Circuit Court of Appeals,
Speaker 2: which since the Reagan administration has transformed for one of
Speaker 2: the most liberal judicial bodies in the country too, perhaps
Speaker 2: the scariest court in America.
Speaker 3: Given its current reactionary reputation. It's a bit ironic. The
Speaker 3: Fifth Circuit Court convenes in a New Orleans Courthouse named
Speaker 3: after John Minor Wisdom, a New Orleans native who formed
Speaker 3: a critical part of a quartet of liberal judges known
Speaker 3: simply as the Four who in the nineteen fifties and
Speaker 3: nineteen sixties issued a series of revolutionary rulings that advanced
Speaker 3: the civil rights movement. President Dwight Eisenhower pointed Wisdom to
Speaker 3: the bench in nineteen fifty seven. He quickly formed an alliance
Speaker 3: with three other liberal judge is on the Fifth Circuit,
Speaker 3: Albert P. Tuttle of Georgia, John R. Brown of Texas,
Speaker 3: and Richard T. Rivis of Alabama. Rivers was the only
Speaker 3: Democrat on the squad that came to be known as
Speaker 3: the Fifth forour these liberals typically prevailed over the conservatives
Speaker 3: serving on the Fifth Circuit, and at that point, the
Speaker 3: Fifth Circuit heard cases from states that spread across the
Speaker 3: core of the one time Confederacy, including Louisiana, Florida, Alabama, Mississippi, Texas,
Speaker 3: and Georgia. This placed the Fifth boar on the front
Speaker 3: lines of the civil rights struggle. In nineteen fifty eight,
Speaker 3: the Fifth Circuit began shipping away at Jim Crow. The
Speaker 3: court heard the case of Joe Dorsey, Junior of New
Speaker 3: Orleans challenging the Louisiana law that outlawed matches between black
Speaker 3: and white boxers. Wisdom wrote the majority opinion, which declared
Speaker 3: such legislation made a mockery of the equal protection clause
Speaker 3: of the Fourteenth Amendment to the United States Constitution. That opinion,
Speaker 3: like many Wisdom wrote, would be upheld the following year
Speaker 3: by the Supreme Court that was presided over by Chief
Speaker 3: Justice Earl Warren. Louisiana integrated boxing matches, but for years
Speaker 3: outside the ring, the arenas divided into black and white seating.
Speaker 3: In the coming years, the Fifth Circuit forced Saint Helen
Speaker 3: Parrish and Louisiana to reopen their schools after that school
Speaker 3: board voted to close all campuses to prevent integration. The
Speaker 3: Fifth Circuit Court ordered the University of Mississippi to admit
Speaker 3: an African American student, James Meredith. In his opinion, Wisdom
Speaker 3: wrote that Ole miss as it's known, had engaged in
Speaker 3: a carefully calculated campaign of delay, harassment, and masterly inactivity.
Speaker 3: Riots broke out as federal troops had to enforce the order.
Speaker 5: James H.
Speaker 6: Meredith is formerly enrolled at the University of Mississippi, ending
Speaker 6: one chapter in the federal government's efforts to desegregate the university.
Speaker 6: The town of Oxford is an armed can following ads
Speaker 6: that accompany the registration of the first Negro in the
Speaker 6: university's one hundred and eighteen year history. Much of this
Speaker 6: film record was destroyed when our cameraman, Gordon Yoder, was attacked,
Speaker 6: but he did salvage pictures of Governor Ross Barnett at
Speaker 6: the scene. The governor fought the court order long and
Speaker 6: bitterly before modifying his stad saying Mississippi was overpowered by
Speaker 6: the federal government. President Kennedy appealed to the students and
Speaker 6: to the people of the state to comply peacefully with
Speaker 6: the law and bring the crisis to an end. Even
Speaker 6: as he talked, riots were breaking out in Oxford.
Speaker 7: Americans are free, in sure to disagree with the law,
Speaker 7: but not to disobey it. For any government of laws
Speaker 7: and not of men, No man, however prominent.
Speaker 2: Or powerful, and no mob, however.
Speaker 7: Unruly or boisterous, is entitled to defy a court of law.
Speaker 2: In nineteen sixty v three of the Fifth Circuit ordered
Speaker 2: the desegregation of community centers cultural centers, playgrounds, and public parks.
Speaker 2: The next year, the court ruled the jury selection system
Speaker 2: in Orleans Paris, where as Wisdom noted, no black had
Speaker 2: ever set on a grand jury or trial jury panel,
Speaker 2: violated the Constitution. Two years after that, the Fifth Circuit
Speaker 2: overturned Louisiana's photo registration literacy tests, which required as citizen
Speaker 2: to pass, in the judgment of white officials, a written
Speaker 2: test on the Constitution. Such laws had long disenfranchised impoverished
Speaker 2: African Americans and whites.
Speaker 3: Perhaps Wisdom's most significant opinion came with the nineteen sixty
Speaker 3: eight United States v. Jefferson case, which blocked states from
Speaker 3: avoiding compliance with the Brown v. Board of Education decision
Speaker 3: by setting up so called quote school choice plans in
Speaker 3: which parents allegedly freely chose to send their children to
Speaker 3: segregated schools.
Speaker 1: Wisdom wrote, the Constitution is both color blind and conscious.
Speaker 1: To avoid conflict with the equal Protection clause, a classification
Speaker 1: that denies a benefit, causes harm, or imposes a burden
Speaker 1: must not be based on race. In that sense, the
Speaker 1: Constitution is color blind, but the Constitution is color conscious
Speaker 1: to prevent discrimination from being perpetuated and to undo the
Speaker 1: effects of past discrimination.
Speaker 2: Quoting a phrase that would later ignite fierce white backlash
Speaker 2: against civil rights North and South, Wisdom said school systems
Speaker 2: needed to move beyond ostensibly not discriminating and to take
Speaker 2: quote affirmative action to bring about a unitary, non racial system.
Speaker 2: That phrase would provide a legal foundation for school bussing
Speaker 2: as a means of genuinely integrating schools, and also introduce
Speaker 2: the concept of affirmative action hiring practices in other stubborn
Speaker 2: aspects of racial exclusion.
Speaker 3: The Fifth Circuit's record of judicial progressivism continued through the
Speaker 3: nineteen seventies. A nineteen seventy six decision by the Fifth Circuit,
Speaker 3: for instance, required public colleges and universities in Texas to
Speaker 3: recognize gay student organizations. Meanwhile, moderate Republicans tried to persuade
Speaker 3: Richard Nixon to nominate Wisdom for the United States Supreme Court. However,
Speaker 3: Attorney General John Mitchell, who later went to prison for
Speaker 3: his role in the Watergate scandal, squashed the idea. He
Speaker 3: complained that the judge was a damn left winger who
Speaker 3: would specially be as bad as the famously liberal Chief
Speaker 3: Justice Warren. President Clinton would give was then the Presidential
Speaker 3: Medal of Freedom in nineteen ninety three. Wisdom died six
Speaker 3: years later. If he miraculously returned, Wisdom would not recognize
Speaker 3: the appeals court that he spent so much of his
Speaker 3: life serving. We'll talk about the transformation of the Fifth
Speaker 3: Circuit of Appeals, the extreme and disturbing decisions that has
Speaker 3: made since the start of the Trump era, and the
Speaker 3: career of one of that court's most infamous judges when
Speaker 3: we come back from our hope fully less infamous sponsors.
Speaker 3: In nineteen eighty one, the federal judiciary was reorganized. The
Speaker 3: Fifth Circuit Court now heard appeals only from Mississippi, Louisiana,
Speaker 3: and Texas. A new eleventh Circuit court now here's cases
Speaker 3: from Alabama, Georgia, and Florida. We should provide a hopefully
Speaker 3: brief civics lesson here. The Fifth Court consists of seventeen
Speaker 3: active judges and nine senior judges.
Speaker 2: When a side.
Speaker 3: Loses a case in a federal district court, they can
Speaker 3: appeal to a circuit court, where the case is heard
Speaker 3: by a three judge panel. In some cases, if one
Speaker 3: side disagrees with the judgment of the panel, they may
Speaker 3: appeal the decision to the full judicial Court.
Speaker 2: Among the act of judges, those appointed by Republican presidents
Speaker 2: outnumber those appointed by Democrats by a margin of twelve
Speaker 2: to five. Donald Trump applented more than a third of
Speaker 2: these judges, six in all, each of course, could serve
Speaker 2: on the court for the rest of their life. The
Speaker 2: Fifth Circuit also has eight senior judges who are semi
Speaker 2: retired but preside over a limited number of cases. Six
Speaker 2: of them were also appointed by Republican presidents, stretching back
Speaker 2: to Ronald Reagan.
Speaker 3: Even in that hyper conservative company, James Hoe has stood out.
Speaker 3: Mike Davis, the president of the Pro Trump Article three Project,
Speaker 3: a group dedicated to pushing federal courts further right, has said,
Speaker 3: quote on every crucial but controversial legal issue, Jim Hoe
Speaker 3: is constantly the tip of the spear.
Speaker 2: It has been a cliche among the American right wingers
Speaker 2: that liberal judges from the time of Franklin Roosevelt Lawan
Speaker 2: had become judicial activists for abusing their positions on the
Speaker 2: bench to advance their political agendas rather than impartially ruling
Speaker 2: on the law. Calling balls and strikes. Hoe's open political advocacy, however,
Speaker 2: has raised no LA arms for those saying presume advocates
Speaker 2: for judicial neutrality.
Speaker 3: While he served as Texas's Solicitor General, Hoe did pro
Speaker 3: bono work for the First Liberty Institute, a Christian right
Speaker 3: organization headquartered in Plano, Texas, just north of Dallas, that
Speaker 3: won a case for a Washington State high school football
Speaker 3: coach who was fired because he violated school policy by
Speaker 3: leading his team in prayer after each game. The group
Speaker 3: has also represented bakers who refused to make wedding cakes
Speaker 3: for same sex couples.
Speaker 2: As a judge, Hoe led a boycott of legal clerks
Speaker 2: who graduated from Yale Law School to punish that institution
Speaker 2: for its supposed leftist cancel culture and intolerance and conservative views.
Speaker 2: During his speech to the far right Heritage Foundation, the
Speaker 2: authors of Project twenty twenty five, Hoe ridiculed lawyers with
Speaker 2: fancy credentials, fancy law schools, fancy clerkships, fancy law firms,
Speaker 2: and government jobs. He claimed that issued liberal opinions for
Speaker 2: no other purpose than winning popularity. Here young conservatives to
Speaker 2: assert themselves against the sposed popularity of political correctness.
Speaker 3: In addition to serving on the bench, Ho could be
Speaker 3: considered an activist particularly on culture war issues like abortion.
Speaker 3: He's condemned abortion as the quote immoral, tragic, and violent
Speaker 3: taking of innocent human life. In twenty eighteen, he upheld
Speaker 3: a Texas law that required the cremation or burial of
Speaker 3: fetal remains a potentially costly burden for women receiving medical treatment,
Speaker 3: and the state of Texas argued that any potential financial
Speaker 3: burdens to women or clinics were irrelevant since the Texas
Speaker 3: Conference of Catholic Bishops made a pledge to bury the
Speaker 3: remains for low cost or even for free. Such a promise,
Speaker 3: of course, was not legally binding.
Speaker 2: A district court overturned the law, but Hoe, in the
Speaker 2: fifths Circuit reinstated it, arguing that coarse burial protected religious
Speaker 2: freedom of the Catholic bishops. Quote. The First Amendment expressly
Speaker 2: guarantees the free exercise religion, including the right of bishops
Speaker 2: to express their profound objection to the moral tragedy of abortion,
Speaker 2: Hoe wrote, Texas still requires that fetal remains receive burial
Speaker 2: or cremation. As we'll explain later, it's not only on
Speaker 2: the issue of abortion that Hoe has staked out in
Speaker 2: extreme position. In Man's First successions. The Fifth Circuit Court,
Speaker 2: by an eight to seven vote, narrowly avoided overturning a
Speaker 2: federal gun law that prohibited interstate gun sales. Hoe offered
Speaker 2: a bitter descent, quoting his mentor Clarence Thomas and complaining
Speaker 2: that in spite of the wide open access to firearms
Speaker 2: in this country, the Second Amendment had become quote, a
Speaker 2: second class right. In his opinion, how ridiculed advocates of
Speaker 2: gun control is suffering from hoplophobia, the irrational fear of guns.
Speaker 3: Hoe in the entire Fifth Circuit achieved national infamy after
Speaker 3: the Supreme Court raised almost half a century of abortion
Speaker 3: rights when it overturned the Roe Vwaid decision in the
Speaker 3: Dobbs v. Women's Health Organization case on June twenty fourth,
Speaker 3: twenty twenty two. A little more than a year after
Speaker 3: that landmark case, on August sixteenth, twenty twenty three, the
Speaker 3: Fifth Circuit upheld tightened access for women to mifipristone, the
Speaker 3: so called abortion pill, which accounts for more than half
Speaker 3: of all terminated pregnancies in the United States. Originally approved
Speaker 3: by the Food and Drug Administration in two thousand, but
Speaker 3: only for prescription by hospitals and other medical facilities. The
Speaker 3: FDA expanded access to the medication in twenty sixteen and
Speaker 3: gave doctors the right to directly prescribe mifipristone in response
Speaker 3: to the COVID nineteen pandemic. Starting in twenty twenty one,
Speaker 3: Women could receive it through the mail in twenty twenty.
Speaker 2: For an anti abortion organization, the Alliance or Hippocratic Medicine
Speaker 2: intentionally incorporated in twenty twenty two and Amarillo, which placed
Speaker 2: it in the jurisdiction of the famously anti abortion Federal
Speaker 2: District Judge Matthew J. Kasmeric, like Judge Hoe, Cosmeric, belonged
Speaker 2: to the First Liberty Institute. While being considered for the
Speaker 2: federal bench, he unsuccessfully tried to conceal his authorship of
Speaker 2: legal articles on gay rights he thought might jeopardize approval
Speaker 2: of his domination by the US Senate. Chasmeric has described
Speaker 2: gay and trans people as mentally disordered. The Alliance for
Speaker 2: Hippocratic Medicine filed student Caasmerics Court seeking to overturn the
Speaker 2: FDA's approval of mythipriss Stone, even though decades of research
Speaker 2: had demonstrated its safety and its effectiveness for treating Cushing syndrome,
Speaker 2: a severe endocrine disorder.
Speaker 3: None of the doctors in the Alliance had ever been
Speaker 3: involved in a medical case in which the use of
Speaker 3: mythipresstowne had been considered. In his opinion, Kasmeric showed his
Speaker 3: disdain for medical personnel providing women with reproductive care, referring to
Speaker 3: them as quote abortionists and called terminating pregnancy through medication
Speaker 3: quote starving the unborn human until death.
Speaker 2: Courts require that parties have what just is called standing
Speaker 2: in order to file a lawsuit. That means, for instance,
Speaker 2: that one party has been in some way directly inured
Speaker 2: by the other party. President Joe Biden's food and Drug
Speaker 2: administer I should question how the doctors and the Alliance
Speaker 2: for Hippocratic Medicine had in any way been directly harmed
Speaker 2: because women have access to abortion medications. Chasmeric found a
Speaker 2: fans full way to grant the Alliance a right to sue.
Speaker 2: He claimed that treating the rare complications from mitha pristone
Speaker 2: overwhelmed hospitals in placed quote enormous pressure and stress on
Speaker 2: the doctors during emergencies and complications. After granting the Alliance
Speaker 2: standing Chasmeric issued a preliminary injunction suspending the FDA's approval
Speaker 2: of the drug. The decision would go into effect in
Speaker 2: seven days in order to give the federal government a
Speaker 2: chance to file an appeal. In his decision, Chasmeric cited
Speaker 2: two studies that claimed the drug was harmful, but both
Speaker 2: had been retracted by a medical journal. In effect, Kasmeric
Speaker 2: had banned mifipristone nationwide. The United States Justice Department and
Speaker 2: dan Co Laboratories. MiFi pristone's manufacturer appealed, and the case
Speaker 2: went to the Fifth Circuit. Judicial chaos surrounding the status
Speaker 2: of myth for pristone reigned within hours, as ABC seven
Speaker 2: in Los Angeles reported.
Speaker 4: A judicial bombshell involving abortion that could have an impact
Speaker 4: in all fifty states. A Texas federal judge revoking FDA
Speaker 4: approval of an abortion pill that's been used for more
Speaker 4: than twenty years, but another federal judge in Washington State
Speaker 4: then issuing a contradictory ruling, setting up another major battle
Speaker 4: over a woman's right to choose. I went Ashoo's reporter
Speaker 4: Amy Powell, joining US live in studio with more tonight, Amy.
Speaker 8: And Michelle This is causing a lot of concern. The
Speaker 8: reversal of Roe versus Weighed by the Supreme Court was
Speaker 8: supposed to mean that abortion laws would be left up
Speaker 8: to individual states, But today a Texas federal judge issued
Speaker 8: a ruling that could end access to an abortion pill
Speaker 8: in all fifty states. Shortly after the Texas judge issued
Speaker 8: his decision, a judge in Washington State issued a ruling
Speaker 8: ordering the FDA to make no changes to the availability
Speaker 8: of MiFi pristone. Those conflicting orders mean this case is
Speaker 8: likely to end up in the Supreme Court.
Speaker 3: The MiFi pristone case went to the Fifth Circuit, where
Speaker 3: Judge Ho would write an opinion critics characterized as disturbing, baffling,
Speaker 3: and bizarre. We'll talk about what happened in the MiFi
Speaker 3: pristone case and how Judge Hoe, an immigrant himself, has
Speaker 3: suggested that the children of migrants might not be eligible
Speaker 3: for birthright citizenship because the United States is, in his words,
Speaker 3: being invaded. But first we'll hear some, hopefully not two
Speaker 3: bizarre messages from our sponsors.
Speaker 2: When the Fifth Circuit heard the appeal of Kasmeric's ruling,
Speaker 2: Hoe didn't recuse himself from the case, even though his wife, Allison,
Speaker 2: a lawyer, has repeatedly appeared at events sponsored by the
Speaker 2: Alliance Defending Freedom, one of the litigants, and even receives
Speaker 2: speaking fees from the organization. Hoe brushed off this obvious.
Speaker 3: Conflict of interest on August sixteenth, twenty twenty three. That
Speaker 3: court didn't completely uphold Chismeric's ruling, but it did impose
Speaker 3: numerous restrictions on the abortion pill called MiFi Pristown, claiming
Speaker 3: that the FDA didn't fully consider its potential health risks.
Speaker 3: If the Supreme Court had upheld the Fifth Circuit's opinion,
Speaker 3: women would not have been allowed to receive a prescription
Speaker 3: through the mail after online medical appointments. They would have
Speaker 3: been able to receive the prescription only after a direct
Speaker 3: visit with a doctor and after three in person follow
Speaker 3: up appointments. The window in which women would have been
Speaker 3: allowed to take miphi pristown would have been cut from
Speaker 3: seventy days of pregnancy to about forty nine.
Speaker 2: Hoe wanted to go much further than the Fifth Circuit's majority.
Speaker 2: He wanted to rescind the FDA's approval a myth for
Speaker 2: press though, which would have removed the drug from the
Speaker 2: market entirely. When judges agree with a majority on a panel,
Speaker 2: they can write a concurring opinion that gives them a
Speaker 2: chance to grand stand about a Case's what Hoe did
Speaker 2: in his concurrence when he bitterly complained that some believed
Speaker 2: that quote no one should ever question the FDA.
Speaker 3: Hoe then asked the public to pity the obstetricians he
Speaker 3: claimed suffer because of women's abortion rights. Hoe drew on
Speaker 3: environmental case law, which acknowledges that a member of the
Speaker 3: public might believe that they've suffered a loss when, for instance,
Speaker 3: a park is destroyed because it is the location of
Speaker 3: a new mining operation, and then they can sue on
Speaker 3: that basis. Hoe argued that doctors could suffer the same
Speaker 3: sort of damages when a pregnancy is medically ended. In
Speaker 3: his concurrence on MIPH Pristowin, Hoe wrote the following.
Speaker 1: Unborn babies are a source of profound joy for those
Speaker 1: who view them. Expectant parents eagerly share ultrasound photos with
Speaker 1: loved ones, friends and family, cheer at the sight of
Speaker 1: an unborn child, and doctor's delight in working with their
Speaker 1: unborn patients, and experience an esthetic injury when they are aborted.
Speaker 2: Leo Yu is an assistant professor of law at the
Speaker 2: University of Massachusetts at Dartmouth who specializes in civil rights law.
Speaker 2: You actually received law degrees in two countries, his native
Speaker 2: China and in the United States at Southern Methodist University
Speaker 2: in Dallas. While he lived in Texas, he lived under
Speaker 2: the jurisdiction of the Fifth Circuit and saw close hand
Speaker 2: the legal chaos. The Fifth Circuit is created in the
Speaker 2: states of Texas, Louisiana, Mississippi. In twenty twenty one, he
Speaker 2: created the podcast Plead the Fifth Professor. U believes that
Speaker 2: when Hoe writes extreme opinions, such as in the methaprostone case,
Speaker 2: he's desperately trying to get one man's attention.
Speaker 9: He is auditioning all the time to the Supreme Court,
Speaker 9: and he went so far to create something that is
Speaker 9: quite honestly, just not even sensible. It's like, you know,
Speaker 9: pe Paul wants to see cute little ultrasoule of babies,
Speaker 9: and that makes important, you know, them having the standing
Speaker 9: to challenge abortion pills, they wouldn't be able to see
Speaker 9: those cute little altha sounds anymore.
Speaker 2: And it just that part.
Speaker 9: Of rationale is quite just insane. I think that part.
Speaker 9: I don't know if that is something that he truly believed,
Speaker 9: And I would say that it's hard to imagine for
Speaker 9: anybody who truly believed that sort of analysis. So I
Speaker 9: put that part of analysis as another way from justice
Speaker 9: whod trying to audition for the Supreme Court, Like, hey,
Speaker 9: you think you found a concerns of the judge somewhere
Speaker 9: in DC, Look at me. I'm even more. And that's
Speaker 9: what it is.
Speaker 3: No one would accuse the United States Supreme Court under
Speaker 3: John Roberts of being moderate, but repeatedly Roberts and the
Speaker 3: other justices have taken the Fifth Circuit to task for
Speaker 3: going to extremes, and it's ruined. As Texas Tribune writer
Speaker 3: Eleanor Clibanoff put it, quote, if the Fifth US Circuit
Speaker 3: Court of Appeals as a boxer, you'd bet on the
Speaker 3: other guy.
Speaker 2: Writing a Supreme Court's reaction of Fifth Circuit rulings in
Speaker 2: July twenty twenty four, Klebanov noted that only three of
Speaker 2: the tribunal's decisions had been upheld while aid had been overturned,
Speaker 2: a one loss record that ranked amongst the worst among
Speaker 2: circuit courts in the country in a Metha pristone case,
Speaker 2: just as Brett Kavanaugh, hardly a Bolshevik, expressed dismay that
Speaker 2: the Alliance for Hippocratic Medicine had been granted standing.
Speaker 3: Kavanaugh wrote this quote, For a plaintiff to get in
Speaker 3: the federal courthouse door and obtain a judicial determination of
Speaker 3: what the governing law is, the plaintiff cannot be a
Speaker 3: mere bystander, but instead must have a personal stake in
Speaker 3: the dispute. End quote. If the standard set by Judge
Speaker 3: Ho and his peers in New Orleans remained in place,
Speaker 3: Kavanaugh warned, quote, virtually every citizen would have standing to
Speaker 3: challenge virtually every government action that they do not like. Governing,
Speaker 3: he suggested, would become in possible.
Speaker 2: It wasn't just on the issue of legal standing that
Speaker 2: the Supreme Court found the Fifth Circuit Court's judgment lacking.
Speaker 2: In the case of Rahemi versus the United States, the
Speaker 2: Fifth Circuit overturned a federal law that prohibited domestic abusers
Speaker 2: from buying firearms. The Highest Court on June twenty first,
Speaker 2: twenty twenty four, overturned that decision by an eight to
Speaker 2: one margin. Chief Justice John Roberts, who generally supports a
Speaker 2: very broad view of gun right, said that history quote
Speaker 2: confirms what common sense suggests. When an individual poses a
Speaker 2: clear threat of physical violence to another, the threatening individual
Speaker 2: may be disarmed. Roberts also suggested that the Fifth Circuit
Speaker 2: misunderstood the Supreme Court's view of the Second Amendment. Fusser,
Speaker 2: you told us that as conservative as Supreme Court majority
Speaker 2: might be outside of Clarence Thomas, they have found the
Speaker 2: Fifth Circuit's rulings to be an embarrassment to conservative judicial philosophy.
Speaker 9: All that again, I think that was the a to
Speaker 9: one opinion, and Clarence Thomas was the only person who
Speaker 9: would agree was the Fifth CircUse. So in general, I
Speaker 9: think the Supreme Court is definitely conservative. But the Supreme
Speaker 9: Court appreciate a certain type of conservativeness that they can
Speaker 9: chew on, and it's something that it can lays with
Speaker 9: some academic legitimacy and knowledges, some sort of attention seeking
Speaker 9: paragraphs that would make people hold feel some sort of feeling.
Speaker 3: On the last day of it's twenty twenty four session,
Speaker 3: the Supreme Court sent back to the Fifth Circuit the
Speaker 3: case involving a twenty twenty one Texas law that limited
Speaker 3: the ability of social media companies to suspend user accounts
Speaker 3: for extremist or violence inciting content. The law was inspired
Speaker 3: by the decision of what was then called Twitter and
Speaker 3: now x, as well as other social media companies, to
Speaker 3: deplatform Donald Trump after the president encouraged his supporters to
Speaker 3: ransack the capital and stop the counting of electoral college
Speaker 3: votes on January one. The Fifth Circuit previously upheld the law,
Speaker 3: claiming that it rejected quote the idea that corporations have
Speaker 3: a free, willing, First Amendment right to censor what people say.
Speaker 2: Hoe and his allies on the Fifth Circuit, however, are
Speaker 2: fine with censoring free expression by members of the LGBTQ community.
Speaker 2: In March twenty twenty three, Walter Wendler, the president of
Speaker 2: West Texas A and M University, a public institution, cancel
Speaker 2: at drag shows schedule at Legacy Hall, a campus building.
Speaker 2: Organizers plan to use proceeds from the performance to raise
Speaker 2: money for the Trevor Project, a nonprofit group that seeks
Speaker 2: to prevent suicides in the LGBTQ plus community. In a
Speaker 2: statement canceling the show, Wendler explicitly said that his private
Speaker 2: religious beliefs guided his decision.
Speaker 1: West Texas A and M University will not host a
Speaker 1: drag show on campus. I believe every human being is
Speaker 1: created in the image of God, and therefore a person
Speaker 1: of dignity. Does a drag show reserve a single thread
Speaker 1: of human dignity? I think not. As a performance exaggerating
Speaker 1: aspects of womanhood, sexuality, femininity, gender, drag shows stereotype women
Speaker 1: in cartoon like extremes for the amusement of others, and
Speaker 1: discriminate against womanhood. Drag shows are derisive, divisive, and demoralizing misogyny.
Speaker 1: No matter what the stated intent, such conduct runs counter
Speaker 1: to the purpose of West Texas A and M. A
Speaker 1: person or group should not attempt to elevate itself or
Speaker 1: a cause by mocking another person or group. As a
Speaker 1: university president, I would not support blackface performances on our campus,
Speaker 1: even if told the performance is a form of free
Speaker 1: speech or intended as humor, it is wrong.
Speaker 3: Spectrum WT, a pro LGBTQ student organization, filed a suit
Speaker 3: challenging the band and requested an injunction blocking Wendler's action,
Speaker 3: but Judge Kasmirick the same jurist who initially blocked access
Speaker 3: to MiFi pristone sided with West Texas A and M
Speaker 3: and issued a preliminary ruling preventing the drag show from
Speaker 3: taking place pending a trial. He said the performance supposed
Speaker 3: sexual content lacked free speech protections. Quote the First Amendment
Speaker 3: does not prevent school officials from restricting vulgar and lewd
Speaker 3: conduct that would undermine the school's basic educational mission, particularly
Speaker 3: in settings where children are physically present, Cosmeric wrote in
Speaker 3: his September twenty two to twenty twenty three opinion.
Speaker 2: Spectrum WT appealed. The case went to the Fifth Circuit,
Speaker 2: where a three judge panel heard arguments on whether the
Speaker 2: fundraiser could proceed. On August eighteen, twenty five, by two
Speaker 2: to one vote, the panel reversed Kasmeric's ruling. Judge Leslie Southwick,
Speaker 2: a George W. Bush appointee, and a Bill Clinton appointed
Speaker 2: US Circuit judge James Dennis ruled that West Texas A
Speaker 2: and M had violated the gay student Organization's express of rights.
Speaker 3: Predictably, Hoe dissented. He simply echoed the arguments used by
Speaker 3: the university president, insisting that banning drag shows somehow advanced inclusivity.
Speaker 1: University officials have determined that drag shows are sexists for
Speaker 1: the same reason that blackface performances are racist, and Supreme
Speaker 1: Court President demands that we respect university officials when it
Speaker 1: comes to regulating student activities to ensure an inclusive educational
Speaker 1: environment for all.
Speaker 3: Spectrum wt's victory proved temporary. The panel's decision would not
Speaker 3: go into effect until the case was heard by the
Speaker 3: entire Fifth Circuit Court. Meanwhile, a full trial unfolded in
Speaker 3: Kasmirics Court in January. Not surprisingly, he ruled in favor
Speaker 3: of West Texas A and M. He said that the
Speaker 3: student group had not proven that the show was meant
Speaker 3: to convey a message that might be protected by the
Speaker 3: First Amendment, and that by their nature, drag shows have
Speaker 3: sexualized content, and the university had the right to regulate
Speaker 3: on campus grounds. The hearing before the full Fifth Circuit
Speaker 3: was canceled, although Spectrum's legal team at the Foundation for
Speaker 3: Individual Rights and Expression plans a different appeal. One twenty
Speaker 3: fifth a panel of the Fifth Circuit also upheld a
Speaker 3: new state ban on certain types of drag performances. Judge
Speaker 3: Kurt Engelhart, appointed to the Fifth Circuit by President Donald
Speaker 3: Trump expressed doubt that such shows were protected by the Constitution,
Speaker 3: especially said quote in the presence of minors.
Speaker 2: While the Fifth Circuit chipped away at free speech rights
Speaker 2: for the LGBTQ plus community, the advanced the rights of
Speaker 2: states to impose speech on public school teachers. The Full Court,
Speaker 2: by a twelve to sixth margin, lifted a district court's
Speaker 2: hold on a Louisiana state law require siring teachers display
Speaker 2: post size copies of the Ten Commandments in public school classrooms,
Speaker 2: in spite of the First Amendments prohibition establishing a state
Speaker 2: religion or requiring religious practice. In the efforts of the
Speaker 2: founders of the American Republic, like Thomas Jefferson, direct a
Speaker 2: wall of separation between church and state. James Hose celebrated
Speaker 2: the decision. The Louisiana law was the only constitutional host
Speaker 2: said it quote affirms our nation's highest and most noble traditions.
Speaker 2: That claim left Professor U baffled.
Speaker 9: The question is is he a historian when he said
Speaker 9: that the founding members of this country would like that?
Speaker 9: What historical record is he relying on? But isn't that
Speaker 9: even anti common knowledge that our founders would really resent
Speaker 9: that to push our newly establed republic to a situation
Speaker 9: where we push our citizens to believe in certain things religiously.
Speaker 9: That is exactly the reason widely left Europe.
Speaker 3: The Fifth Circuit has presented a threat not only to
Speaker 3: the separation of church and state, free speech, and LGBTQ
Speaker 3: plus rights, but has also placed the rights of workers
Speaker 3: in its crosshairs. On August nineteenth, the United States Fifth
Speaker 3: Circuit Court of Appeals upheld an injunction requested by attorneys
Speaker 3: for Elon Musk's SpaceX Corporation, ruling that the structure of
Speaker 3: the National Labor Relations Board is unconstitutional and prohibiting it
Speaker 3: from acting against that company and two other corporations the
Speaker 3: NLRB charged with labor law violations. As has often happened,
Speaker 3: the Fifth Circuit Court ruling conflicts with that of another
Speaker 3: Circuit court, the Ninth Circuit, which upheld the power granted
Speaker 3: by the NLRB. This split almost certainly guarantees the case
Speaker 3: will end up in front of a Supreme Court that
Speaker 3: has been no friend of American workers.
Speaker 2: On rare occasions, the Fifth Circuit might still acknowledged as
Speaker 2: society is tilted against the poor and people of color.
Speaker 2: A panel made up of Fifth Circuit judges ruled that
Speaker 2: Labine Conan could proceed with our lawsuit against the United
Speaker 2: States Post Office, a landlord who owns two properties in
Speaker 2: Ulus suburb between Dallas and for Worth. Conan claimed that,
Speaker 2: beginning in twenty twenty two, local postal employees abruptly stopped
Speaker 2: delivering mail, first to her and then to her tenants,
Speaker 2: because she said they didn't like the idea that a
Speaker 2: black person owned the properties.
Speaker 3: The Post Office is mostly shielded from lawsuits by a
Speaker 3: legal doctrine called sovereign immunity, under which, as legal analyst
Speaker 3: Eli Msdonnell explains, quote, the government cannot be held liable
Speaker 3: for monetary damages arising out of actions taken by the government.
Speaker 3: What was unique about the United States Postal Service Bucanan case, however,
Speaker 3: was that in this circumstance, the government was causing intentional
Speaker 3: damage to a private citizen. This time, the Fifth Circuit
Speaker 3: ruled in favor of a marginalized citizen and ruled the
Speaker 3: suit could go forward. This rare progressive ruling was for
Speaker 3: not However, this Supreme Court overturned the Fifth Circuit once again,
Speaker 3: Clarence Thomas wrote the opinion for the five four majority,
Speaker 3: essentially ruling, as miss Stalls summarized the case quote that
Speaker 3: the post officers immune from liability even when its workers
Speaker 3: intentionally refuse to do their jobs. Miss Stalls suggested that
Speaker 3: this decision carries ominous implications for the upcoming election, should
Speaker 3: the US Postal Service, for instance, refuse to deliver mail
Speaker 3: in ballots in spite of James Hosts status as an immigrant.
Speaker 3: His most alarming opinion might be regarding birthright citizenship. Ratified
Speaker 3: in eighteen sixty eight, just three years after the end
Speaker 3: of the Civil War, fourteenth Amendment to the United States
Speaker 3: Constitution declares in its opening sentence that quote all persons
Speaker 3: born or naturalized in the United States, and subject to
Speaker 3: the jurisdiction thereof are citizens of the United States and
Speaker 3: of the state wherein they reside.
Speaker 2: For one hundred and twenty eight years, Supreme Court has
Speaker 2: rejected claims that citizenship can be denied to persons born
Speaker 2: or naturalized here based on their race or the immigration
Speaker 2: status of their parents. In the eighteen ninety eight United
Speaker 2: States versus Wang kim Ark case, the Supreme Court upheld
Speaker 2: the citizenship of a man born in the United States
Speaker 2: to Chinese parents. The government tried to block Arc from
Speaker 2: returning to the United States after he visited China, based
Speaker 2: on the eighteen a two Chinese Exclusion Act, which barred
Speaker 2: the Chinese from immigrating here. The court ruled sixth to
Speaker 2: two that ARC's birth in the United States established his
Speaker 2: American citizenship and his right to reside here.
Speaker 3: James Hoe has not always attacked the concept of birthright citizenship,
Speaker 3: and in fact he used to defend it.
Speaker 2: Quote.
Speaker 3: Birthright citizenship is a constitutional right no less for the
Speaker 3: children of undocumented persons than for the descendants of passengers
Speaker 3: of the Mayflower, Ho said in a two thousand and
Speaker 3: seven opinion piece for the Des Moines Registered.
Speaker 2: However, as the political wins shifted strongly against immigrants, particularly
Speaker 2: in the Trump era, Hoe is all so tilted in
Speaker 2: a dramatically different direction. In a twenty twenty four interview,
Speaker 2: Hoe claimed that the United States was being invaded by
Speaker 2: the foreign born, and that denying citizenship to the children
Speaker 2: of the undocumented was necessary to defend national sovereignty.
Speaker 1: Hoe said birthright citizenship obviously doesn't apply in case of
Speaker 1: war or invasion. No one to my knowledge has ever
Speaker 1: argued that the children of invading aliens are entitled to
Speaker 1: birthright citizenship, and I can't imagine what the legal argument
Speaker 1: for that would be. It's like the debate over unlawful combatants.
Speaker 1: After nine to eleven, everyone agrees that birthright citizenship doesn't
Speaker 1: apply to the children of lawful combatants, and it's hard
Speaker 1: to see anyone arguing that unlawful combatants should be treated
Speaker 1: more favorably than lawful combatants.
Speaker 3: The question of birthright citizenship might now be out of
Speaker 3: the hands of Hoe and the rest of the Fifth Circuit.
Speaker 3: On December fifth, the Supreme Court agreed to hear a
Speaker 3: case on the constitutionality of Donald Trump's executive order that
Speaker 3: would deny citizenship to those born in the United States
Speaker 3: if their parents were in the country temporarily or lacked
Speaker 3: legal status. Doctor U thinks that the Supreme Court is
Speaker 3: likely to accommodate those restrictions, even as they reject James
Speaker 3: Hoe's more extreme theories.
Speaker 9: I think that Supreme Court would roll back some portion
Speaker 9: of the Fourteenth Amendment protection over people who are born
Speaker 9: in this country, but I don't think they are going
Speaker 9: to what justice Hoe is going after that is the
Speaker 9: invasion theory.
Speaker 2: That doesn't mean that James Hoe may not one day
Speaker 2: bring his extreme views on immigration to the nation's highest court.
Speaker 2: The two most far right judges on the United States
Speaker 2: Supreme Court are James Hoe's mentor, Clarence Thomas, who turned
Speaker 2: seventy eight on June twenty three, and Samuel Alito, celebrates
Speaker 2: his seventy sixth birthday on April first. Court watchers are
Speaker 2: speculating that Alita might step down as early as October.
Speaker 2: His wife, Martha Anne, has expressed eager anticipation that the
Speaker 2: couple might soon be able to openly express their political views.
Speaker 2: As though the Alito's opinions have ever been a mystery,
Speaker 2: It's still an uphill battle, but the odds of Democrats
Speaker 2: retaking the Senate after the off here elections have improved
Speaker 2: significantly in recent weeks. Alita may want to retire, while
Speaker 2: a Republican controlled Senate would still be able to rubber
Speaker 2: stamp Trump's choice for his successor. Alito also has a
Speaker 2: book coming out on October sixth, the day after the
Speaker 2: Supreme Court starts its fall term. Continuing to serve on
Speaker 2: the Court would interfere with any book promotion tour. Such
Speaker 2: an opening might lead to James Ho getting a promotion,
Speaker 2: but Professor Hugh said that the Fifth Court judge shouldn't
Speaker 2: pack his bags just yet. Trump has largely outsourced the
Speaker 2: job of picking new federal judges or promoting them to
Speaker 2: the far right Federal Society, And you think that home
Speaker 2: might lack the polish that a powerful lobbying group would see.
Speaker 9: I think, you know, it's not a secret that he's
Speaker 9: trying to get there, but I honestly think it's not
Speaker 9: gonna be him. He doesn't really fit into the profile
Speaker 9: of a person who would get there. I think the FESSOC,
Speaker 9: you know, the Federalist Society is basically the handler of
Speaker 9: that situation. They would be able to you know, screen
Speaker 9: name and you know, make short lists to the White House.
Speaker 9: And so what kind of people they're looking for. I
Speaker 9: think that they're definitely looking for a conservative if a
Speaker 9: little is going away right, Uh, they're looking for a conservative.
Speaker 9: But I don't think Justice Whole is in their favor
Speaker 9: because I think they're trying to find another person who
Speaker 9: is more sophisticated than Justice Whole. If I may say,
Speaker 9: may say that they wanted to find a person who
Speaker 9: is definitely a conservative, but being able to rewrap the
Speaker 9: message with academic legitimacy and to forge anin for majority
Speaker 9: at the Court to push through their agenda.
Speaker 2: Recently, Trump said he was considering Ted Cruz of Texas
Speaker 2: for the next Supreme Court vacancy. If so, James Hoe
Speaker 2: may be enjoying his lifetime post at the Fifth Circuit
Speaker 2: for the foreseeable future. Hoe celebrated his fifty third birthday
Speaker 2: on February twenty seventh. That means his legal philosophy will
Speaker 2: shape gay and trans writes the limits of free speech,
Speaker 2: who can buy firearms and where and how how much
Speaker 2: autonomy women have over their bodies and what access they
Speaker 2: will enjoy the healthcare and where the boundaries will be
Speaker 2: drawn between church and state for years to come. Hoe
Speaker 2: may not make it to the Supreme Court, but he
Speaker 2: could still be the loudest voice on the scariest court
Speaker 2: in America and shape the future forty million Americans in Texas, Louisiana,
Speaker 2: and Mississippi for decades to come.
Speaker 3: We'd like to thank our friend Steve Mason for providing
Speaker 3: some of the voices today. This is Stephen maun Cholley
Speaker 3: for it could Happen Here, And.
Speaker 2: This is Michael Phillips. Until next time, Thanks for listening.
Speaker 2: It Could Happen Here is a production of cool Zone Media.
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Speaker 9: You can now find sources for it could Happen Here,
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