The Volokh Conspiracy

On Saturday evening, the Texas Review of Law & Politics awarded its 2026 Jurist of the Year award to Judge Kacsmaryk. The latest bobblehead has a perfectly coifed head of hair, far different from the mop atop the 2024 winner.

Today, the Texas A&M Journal of Law Civil Governance published a very timely conversation between Judge Kacsmaryk and the 2023 Jurist of the Year, Judge James C. Ho. It is titled, "What Does It Mean To Be A Christian On The Bench?" I would encourage you to read the entire dialogue, but I'll highlight a few parts here.

First, Judge Kacsmaryk had this to say about textualism in Bostock:

Most famously or infamously, the Bostock case produced three separate "textualist" readings of a statute enacted in 1964 and a sexual dimorphism as old as Genesis.4 Justice Gorsuch focused on Text, finding a "but-for causation" requirement because of "because of." Justice Alito marshaled volumes and volumes of History. Justice Kavanaugh invoked longstanding Tradition rooted in Separation of Powers. But these Titans of Textualism could not harmonize Text, History, and Tradition to agree on workable Title VII definitions of "sex" or "because." Reading these opinions, I discerned that Text, History, and Tradition should yield an agreed "ordinary public meaning" if jurists have a shared teleological end: truth. I hear Pilate's retort: "What is truth?"5 Here, I mean the truth the Textualist Trinity should yield: the "ordinary public meaning" of the words at the time of their enactment, as uttered and understood by the relevant writers and ratifiers—consistent with compositionality6 and against any absurdity.7 . . . This is where the faithful Christian should have a Textualist advantage: we believe there is such a thing as objective, external, knowable Truth.

Second, Judge Kacsmaryk explained how he had to be recruited to become a federal judge.

H: Listening to you discuss judicial philosophy and interpretive theory, I think many people would be surprised to learn that you never sought to be a federal judge. You had to be recruited.

K: In fact, if memory serves, you were the first person to ask if I might relocate to the Amarillo Division to fill the vacancy there. As I recall, I said I was interested in returning to the Department of Justice but had zero interest in the judiciary. You said that's exactly what you liked about the idea—that it wasn't something I ever sought.

H: Matthew 20 reminds us that "whoever wants to become great among you must be your servant . . . just as the Son of Man did not come to be served, but to serve." That's the same ethos that we should find in our judges as well. People who will use power, not to serve themselves, but to serve others. People who are willing to be a judge—but not desperate to be a judge. People whose goal isn't to get onto a bench, but to get into heaven.

Third, Judge Ho opined on what it means to be a federal judge. It is not as glamorous as people might suspect.

Because if you do this job right, it's actually not a fun job. If you're doing it because you want stature and respect and prestige—you want to be praised by the right people and invited to the right parties—then you're going to be distracted. Instead of following the law, you're going to focus on reaching the outcomes that the popular people want you to reach. And we've all seen how that turns out.

Judge Ho has written about how judge, like umpires, fear getting booed. But to be precise, the fear is that judges will be booed by legal elites on the left. The fear does not run the other way. Conservative judges historically have had nothing to fear from being booed by conservatives. Well, that was the case. I made waves years ago by calling out conservative judges. To this day, I continue to pay the price. But more recently, President Trump has turned up the heat. Many of his attacks cross the lines, but as always, there is a kernel of truth in his barbs.

Fourth, Judge Ho reveals that he initially declined Ted Cruz's invitation to become Solicitor General:

K: You served at the Justice Department Office of Legal Counsel and the Senate Judiciary Committee before heading to the private sector. When Senator Cruz suggested that you take over as Texas Solicitor General, you actually declined at first.

H: I've known Senator Cruz for over 25 years, and as far as I can recall, it's the only time he was ever really angry with me. Allyson and I were still new to Dallas. We were just starting our careers here. We also wanted to start our family. That was the whole point of leaving D.C. and moving back to Texas. So I told him that I was profoundly humbled that he would think of me, but that I couldn't do it. But he and others kept at it, and they eventually convinced me to change my answer. As you say, public service is in both of our DNA.

Fifth, Judge Ho discusses how he and his wife, Allyson Ho, balance their careers:

K: Well, you and Allyson have dealt with death threats too, I know. You and Allyson also had some unique considerations that I didn't face in deciding whether to take the bench.

I'm talking about the fact that you were both active Fifth Circuit practitioners before you joined the court. How did you think and pray through that decision?

H: Allyson and I have both been so very blessed in our lives, and that includes practices and careers that we really enjoyed. And by 2017, we were both really starting to hit our stride. So yes, like you, I wasn't planning to pursue the bench. Instead, we were focused on helping the Senators identify others to fill various vacancies—including you, of course! So when I got the call from the Senator's chief counsel asking me if I would consider it, I was very surprised. Allyson and I discussed how it might work, with both of us as Fifth Circuit practitioners. And it's actually not as hard as you might think. As a judge, I have to recuse, not just on every case that Allyson is on, but on every case anyone at her firm is on, whether she's involved or not. The recusal applies to the whole firm. And it's a big firm. But that's okay. Because at any given sitting, there are multiple Fifth Circuit panels. So it's not a big deal for the firm to be recused on any panel I'm ever on. There are other Fifth Circuit panels. The firm isn't recused from our court altogether.

K: So how did it work when President Trump named you to his Supreme Court list in 2020?

H: From a recusal standpoint? Well, there was no vacancy at the time. The President wasn't actually nominating anyone. He was just putting out a list. But if you're asking purely hypothetically about recusal, there are multiple Fifth Circuit panels, but there's only one Supreme Court. I can't imagine that Allyson's firm would want to be categorically recused from the highest court in the land. Or any other major firm with a significant appellate practice, for that matter. To have to tell every client that, if you hire them, they can only seek cert from an eight-member Court? That would effectively end her career and her practice—one she's worked so hard, for decades, to build. I brought this up when folks called me about the list in 2020. I didn't want to deceive anyone. But I was told it wasn't a problem. There was no vacancy. The only question was whether I was willing to be included on a list.

I don't think people quite appreciate what it would mean for the Ho family if Judge Ho were elevated to the Supreme Court. I have written many times that Judge Ho is not auditioning for the Supreme Court. No one believes me, because the audition trap is inescapable. But he is bearing his heart out and speaking truth as a husband. Listen to what the man has to say.

You should read the entire dialogue.