Fifth Circuit Judge James Ho called out discrimination against “religious conservatives” on college campuses during a lecture Wednesday night at The Heritage Foundation.
While students are increasingly willing to shout down speakers they dislike, Ho said this is only a symptom of the real problem on college campuses: “rampant, blatant discrimination against disfavored viewpoints.” The same mindset that motivates such behavior on campus also motivates the current campaign to “undermine the third branch of government,” he said.
“The same toxic discrimination that distorts discourse on college campuses also distorts discourse about the courts,” Ho said.
Ho made headlines in April when he announced he would no longer hire clerks from Stanford law after students shouted down fellow Fifth Circuit Judge Kyle Duncan. A Stanford administrator appeared to condone their efforts, asking whether the “pain” Duncan’s speech caused was “worth the squeeze.”
Ho pointed Wednesday to viewpoint discrimination demonstrated more recently by pro-Hamas protests at colleges nationwide.
“Expressing religious viewpoints, traditional viewpoints, gets you vilified,” he said. “But claiming a right to eliminate a religious group gets you the benefit of the doubt. Voicing traditional values makes people feel unsafe, but supporting terrorism against innocent civilians doesn’t.”
Fifth Circuit Judge James Ho calls out “blatant discrimination” against “religious conservatives” in academia during lecture tonight at The Heritage Foundation. “The same toxic discrimination that distorts discourse on college campuses also distorts discourse about the courts.” pic.twitter.com/Ix2nZSBZmO
— Katelynn Richardson (@katesrichardson) October 26, 2023
In the courts, Ho said originalism only comes under attack when it produces outcomes disliked by “cultural elites” who lead public discourse.
“When that happens, originalists face a concerted campaign of condemnation,” he said. “We’re fundamentally bad people. We’re just too extreme for polite society. We’re mean spirited, racist, sexiest, homophobic. We’re just trolling, we’re auditioning, we’re unethical, if not corrupt.”
Ho has faced his own share of backlash over his opinions, such as one in the major abortion pills case likely bound for the Supreme Court, where he argued doctors challenging the U.S. Food and Drug Administration’s (FDA) approval of mifepristone may face “aesthetic injury from the destruction of unborn life.”
“There’s really no need to pack the courts, when you can just pressure the courts and get the same result,” Ho continued.
Ho referenced Chief Justice John Roberts’ comparison of judges to umpires during his confirmation hearing. If that comparison holds, Ho said judges can similarly be influenced by the crowd’s booing — and may be “even more susceptible.”
For judges facing criticism, Ho warned against falling into “fair-weather” originalism that evades controversy and offered three suggestions: learn to expect it, get used to it and get comfortable with it.
“If you’re looking for gold stars, you are in the wrong business,” he said. “You should become a judge for public service, not public applause.”
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