Appeals Court Judge Ho decries “special treatment being afforded to certain favored litigants like members of Tren de Aragua”

Appeals Court Judge Ho decries “special treatment being afforded to certain favored litigants like members of Tren de Aragua”

James Chiun-Yue Ho is the conservative judge appointed to the 5th Circuit by Trump in 2017, but everyone who follows these things knew he was destined for the Supreme Court. Indeed, Trump floated his name as a possible nominee to fill the Ruth Bader Ginsburg vacancy, inspiring insta-outrage, but Trump instead chose Amy Coney Barrett.

Judge Ho almost certainly will be on Trump’s very, very short list for the next vacancy.

A Concurring Opinion Judge Ho just issued shows why we need him on the high court. The issue was the remand the Supreme Court ordered recently in the TdA Alien Enemies Act case, SCOTUS Keeps Hold On Deportation of TdA Under Alien Enemies Act.

The 5th Circuit was ordered to expedite consideration of what measure of “due process” was to be afforded the alleged gang members before summary removal:

Last Friday, the Supreme Court vacated the judgment of our court, which had dismissed this appeal for lack of jurisdiction. The Court remanded the case back to us for further proceedings, and directed us to proceed “expeditiously.” A.A.R.P. v. Trump, 605 U.S. _, _ (2025).

Accordingly, this matter is expedited to the next available randomly designated regular oral argument panel.

But Judge Ho was not satisfied with that short-form Order. He unleashed a superbly written lashing of the Supreme Court, saying what many of us have been feeling. The full Concurring Opinion is below, here are key excerpts (emphasis added):

Petitioners, identified as members of Tren de Aragua, a designated foreign terrorist organization, should not be allowed to proceed in this appeal.

Our April 18 order held that we lack jurisdiction to grant the relief sought by Petitioners. See Order, A.A.R.P. v. Trump, No. 25-10534 (5th Cir. Apr. 18, 2025); see also id. at 3 (Ramirez, J., concurring).

But last Friday, the Supreme Court reversed our unanimous decision, over a vigorous dissent by Justice Alito, joined only by Justice Thomas. See A.A.R.P. v. Trump, 605 U.S. _ (2025). As an inferior court, we’re duty-bound to follow Supreme Court rulings—whether we agree with them or not. We don’t have to like it. But we have to do it. So I concur in our order today expediting our consideration of this matter, as directed by the Supreme Court.

But I write to state my sincere concerns about how the district judge as well as the President and other officials have been treated in this case. I worry that the disrespect they have been shown will not inspire continued respect for the judiciary, without which we cannot long function. See, e.g., In re Westcott, 135 F.4th 243, 250–51 (5th Cir. 2025) (Ho, J., concurring).

It is not the role of the judiciary to check the excesses of the other branches, any more than it’s our role to check the excesses of any other American citizen. Judges do not roam the countryside looking for opportunities to chastise government officials for their mistakes.

Rather, our job is simply to decide those legal disputes over which Congress has given us jurisdiction.

Under 28 U.S.C. § 1292(a)(1), appellate courts have jurisdiction to review interlocutory orders of the district courts that “refus[e]” to enter an injunction. That includes orders that have “the practical effect of refusing an injunction.” Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981).

That is demonstrably not this case….

He then went on to excoriate the Supreme Court for being misleading (my word not his) about the history of the case in order justify appellate jurisdiction on the false claim that the District Court judge refused to issue a ruling, when in fact, the TdA litigants claimed refusal after giving the District Court only 42 minutes to decide the case.

So when they sought emergency relief at 12:34 a.m. on April 18, Petitioners “were fully aware that the District Court intended to give the Government 24 hours to file a response.” A.A.R.P., 605 U.S. at _ (Alito, J., dissenting). They “said nothing about a plan to appeal if the District Court elected to wait for that response.” Id.

At 12:48 p.m. on April 18, however, Petitioners “suddenly informed the court that they would file an appeal if the District Court did not act within 42 minutes, i.e., by 1:30 p.m.” Id.

So when the court (to no one’s surprise) couldn’t comply with their patently unreasonable timetable, Petitioners immediately filed this appeal.

Our court responded expeditiously. That night, we held that we lacked jurisdiction to hear this appeal under 28 U.S.C. § 1292(a)(1). Our April 18 order explained that “Petitioners gave the court only 42 minutes to act—and did not give Respondents an opportunity to respond.” Order, A.A.R.P., No. 25-10534, at 2.

As our distinguished colleague put it, 42 minutes is quite plainly an “unreasonable deadline.” Id. at 4 (Ramirez, J., concurring). “[W]e cannot find an effective denial of injunctive relief based on the district court’s failure to issue the requested ruling within 42 minutes.” Id.

Our decision was unanimous because it’s obvious: 42 minutes is not remotely enough time to review and analyze all of the relevant legal authorities and prepare a reasoned ruling….

As Justice Alito would later note, “[w]e should commend this careful approach, not criticize it.” A.A.R.P., 605 U.S. at _ (Alito, J., dissenting).

Rather than commend the district court, however, the Supreme Court charged the district court with “inaction—not for 42 minutes but for 14 hours and 28 minutes.” Id. at _.

This inaction was, according to the Court, tantamount to “refusing” to rule on the injunction. Id. at _. This charge is worth exploring. To get to 14 hours and 28 minutes (rather than 42 minutes), the Court was obviously starting the clock at 12:34 a.m., rather than 12:48 p.m. (when Petitioners told the district court for the first time that they wanted a ruling before the Government could respond).

But starting the clock at 12:34 a.m. not only ignores the court’s express instructions respecting the Government’s right to respond. It also ignores the fact that the Court is starting the clock at—12:34 a.m.

We seem to have forgotten that this is a district court—not a Denny’s. This is the first time I’ve ever heard anyone suggest that district judges have a duty to check their dockets at all hours of the night, just in case a party decides to file a motion.

If this is going to become the norm, then we should say so: District judges are hereby expected to be available 24 hours a day—and the Judicial Conference of the United States and the Administrative Office of the U.S. Courts should secure from Congress the resources and staffing necessary to ensure 24-hour operations in every district court across the country.

If this is not to become the norm, then we should admit that this is special treatment being afforded to certain favored litigants like members of Tren de Aragua—and we should stop pretending that Lady Justice is blindfolded.

After explaining why the District Court Judge unfairly was criticized by the Supreme Court, he pointed out the disrespect for the Executive Branch:

The district judge is not the only public official whose treatment in this case warrants comment. Recall why the district court established a 24-hour filing deadline.

The court firmly believed that the Government should have the right to express its views before any ruling is issued. And rightly so. Our adversarial legal system has long been premised on the notion that judges should impartially consider the views of both sides of any dispute before issuing a ruling. See 605 U.S. at _ (Alito, J., dissenting) (“the court took the entirely reasonable position that it would wait for the Government to respond to the applicants’ request for a temporary restraining order (TRO) before acting”); see also Lefebure v. D’Aquilla, 15 F.4th 670, 674–75 (5th Cir. 2021).

It should go without saying that the President and his fellow Executive Branch officials deserve the same respect that courts regularly afford every other litigant—including other Presidents and officials.

In the next paragraphs Judge Ho noted the greater respect shown prior presidential scoundrels:

One former President tried to shame members of the Supreme Court during a State of the Union address by disparaging a recent ruling. See Barack Obama, Address Before a Joint Session of the Congress on the State of the Union, 1 Pub. Papers of the Presidents (Obama 2010) 75, 81 (Jan. 27, 2010). That same President also suggested that it would be illegitimate for the Supreme Court to declare an act of Congress unconstitutional—while a case challenging his signature legislative achievement was pending before the Court. See, e.g., Peter Wallsten and Robert Barnes, Obama’s Supreme Court comments stir debate, Wash. Post, Apr. 4, 2012.

Another former President was disbarred from practicing law before the Supreme Court. See In re Clinton, 534 U.S. 1016 (2001). See also Editorial, Biden’s Student Loan Boast: The Supreme Court ‘Didn’t Stop Me’, Wall St. J., Feb. 23, 2024 (“American Presidents may not like Supreme Court decisions, but most since Andrew Jackson haven’t bragged about defying its rulings.”).

Yet I doubt that any court would deny any of those Presidents the right to express their views in any pending case to which they are a party, before issuing any ruling.

Our current President deserves the same respect.

You are going to love Justice Ho.

It should only happen.

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