Judge Ho Critiques Judicial Supremacy in New Article

Fifth Circuit Court of Appeals Judge James Ho has published a critical article in the Harvard Journal of Law & Public Policy, arguing that an increasing sense of judicial supremacy among federal judges undermines the judiciary's intended role in American governance. Ho contends that this mindset fosters an elitist attitude among judges, which he believes threatens the principle of impartiality essential to the rule of law.

The core of Ho's argument is that judicial supremacy—the belief that the judiciary holds ultimate authority over the executive and legislative branches—leads to a disconnect between judges and the public they serve. He asserts that many judges, particularly those who have recently expressed concerns about judicial independence, have remained silent on issues of judicial misconduct when it aligned with their political views.

In his article, Ho highlights a perceived hypocrisy among judges who advocate for judicial independence while ignoring ethical complaints against their peers. He notes, "It wasn’t until this year — following the inauguration of a new President — that the Federal Judges Association suddenly found its voice, and suddenly discovered a crisis over judicial independence." Ho argues that this inconsistency reveals a strategic rather than sincere concern for the judiciary's integrity.

Critique of Judicial Elitism

Ho's commentary reflects a broader concern about what he describes as an elitist mindset among judges. He claims that many judges are taught to "venerate (if not worship) judges," which he believes distorts their understanding of the judiciary's limited role in a constitutional republic. He emphasizes that the judiciary should not be viewed as a co-equal branch of government, stating, "Judges don’t write the law. Judges don’t execute the law. And that’s for one simple reason. As Americans, we believe that we can govern ourselves."

The judge cites historical perspectives from The Federalist Papers, arguing that the framers of the Constitution viewed the judiciary as the "least powerful branch" due to its lack of enforcement power. Ho warns that judges who stray from impartiality risk eroding public trust in the legal system, which he describes as "fatal to the rule of law."

Concerns Over Cultural Influence

Ho also addresses the influence of cultural elites on the judiciary, criticizing those who support judges that align with their views while condemning those who do not. He writes, "The double standards are everywhere. And they aren’t inadvertent. They’re intentional. Because the elites don’t want neutrality. They want conformity." This perspective raises questions about the pressures judges may face from societal and political forces, which could impact their decision-making.

While Ho's article has garnered attention for its bold assertions, some legal experts caution against oversimplifying the complexities of judicial independence. Critics of Ho's views argue that concerns about judicial supremacy are valid and necessary for maintaining a balanced government. They contend that the judiciary must be vigilant against encroachments from the other branches, particularly in politically charged cases.

Future of the Judiciary

Despite his criticisms, Ho expresses optimism for the future of the judiciary, suggesting that a renewed commitment to originalism and impartiality could restore public confidence. He proposes several principles for evaluating future judicial nominees, emphasizing the importance of judges adhering to the Constitution as originally intended.

In conclusion, Ho's article serves as a call to action for judges to recognize their role within the broader framework of American governance. He asserts, "If the American people can’t expect the judiciary to stay in its lane, then federal judges shouldn’t expect the American people to follow them." As the debate over judicial supremacy continues, Ho's insights may influence discussions about the judiciary's role in American democracy.