The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
An Interview with Judge James C. Ho
Q: Judge Amul Thapar of the Sixth Circuit recently criticized the law clerk hiring boycott that you and others launched earlier this year against Columbia. Judge Kevin Newsom of the Eleventh Circuit made similar criticisms on a podcast hosted by The Dispatch. On the other hand, Judge Matthew Solomson of the Court of Federal Claims has been quite vocal in defending your efforts, including an extended interview with me here. Other than joining the judges' letter, I don't think you've said anything publicly about Columbia to date. Would you like to say anything here, just as Judge Solomson did?
Sure, but let me start by explaining why I haven't been speaking about the boycott. I gave my speech about Yale in 2022, and about Stanford in 2023. At that time, Judge Solomson publicly stated that he didn't agree with the boycott. Then, earlier this year, as conditions at Columbia worsened following October 7, he called me out of the blue and asked if I would consider extending the boycott to Columbia. I responded that, if he wanted to lead such an effort, of course I would support him.
I've been very happy for Judge Solomson to take the lead. He has demonstrated inspiring leadership. There's absolutely nothing wrong with people changing their minds. Indeed, I applaud and admire him for doing it—just as I deeply admire Judge Lisa Branch of the Eleventh Circuit for being the first to jump in. I sincerely hope others will do the same.
It's in that spirit that I wish to warmly welcome Judge Thapar to the conversation. He's made clear that it's absolutely appropriate for judges to be troubled about what's happening on campus, and to want to do something about it. We're just negotiating over terms at this point.
He proposes to have donors and legislators do the heavy lifting of divesting from intolerant institutions. I'm delighted, of course, for any citizen to take action to protect our country against the bigotry and intolerance being spread by certain institutions.
What I'm not interested in doing, however, is passing the buck. Why shouldn't judges stand up and take responsibility as well? Why can't we do both?
My colleagues say they worry about the impact of a boycott on individual law students. I'll confess that I have never understood this argument. Because it's a losing attitude. We should have a winning attitude. If we only focus on losses if a boycott fails, then no one would ever boycott. That's not how rational people make decisions. Rational people look at the benefits of success as well as the costs of failure. They also consider the probability of success vs. failure. As I tell my law clerks, there are two types of people in the legal profession—fighters and climbers. Fighters always assume that we have a chance to win. And smart fighters make rational, intelligent decisions about when to fight.
So imagine this: If a dozen or two dozen federal circuit judges all took this action, how would these schools respond? Would they say, well, that's okay, our students will just go to law firms, they'll find other places to work. Or will they care about clerkships?
I'd submit that it should cost essentially nothing to take this action. Enough of us would have a major impact. Schools would stop the intolerance to regain the prestige. And there would be no cost to anyone as a result. Indeed, Lisa and I have both heard from a number of folks—at Yale and elsewhere—who say that just the two of us have made a meaningful impact.
For many years, Justice Brennan hired exclusively from Harvard. Then he boycotted Harvard (for far less publicly spirited reasons—e.g., he didn't like how Harvard professors treated him and his work). After boycotting for three years, he eventually got what he wanted from Harvard (public displays of respect). So he went back to hiring from Harvard (although much less frequently). See Stephen Wermiel, Justice Brennan and His Law Clerks, 98 Marquette L. Rev. 367, 372 (2014); Owen Fiss, Pillars of Justice 46 (2017); Seth Stern & Stephen Wermiel, Justice Brennan 204-5, 276-77 (2010).
Justice Brennan isn't the only Justice to view law clerk hiring as a means to a broader end. During oral argument in the Harvard case, Justice Kagan noted that many judges make special efforts to hire racially diverse law clerks out of a desire to further social change. Surely other judges can adopt hiring policies out of a desire to combat antisemitism and religious bigotry at certain colleges and universities.
Look, let's not pretend that every federal judge looks at clerkship applicants without regard to which law school they went to. Justice Scalia said publicly that he would never hire a law clerk from Ohio State—even though he personally knows extraordinarily well qualified students who graduated from Ohio State.
The only question is which schools we choose to favor or disfavor, and why. Countless judges hire only from certain schools, or have a strong preference for their alma mater, or prefer schools in their geographic region. I hire from a broader range of law schools than many of my colleagues. But I'm not excited about hiring from law schools that welcome intolerance.
Q: Speaking of academia: You recently said that, "in the six years that I've been a judge, I've come to an understanding about academic commentary about the Supreme Court: Too many academics regard the views of half the country as garbage." Would you like to explain?
Law professors today behave much more politically, and less intellectually, than when I was in law school. Law professors today frequently condemn anyone who disagrees with cultural elites on any issue. We're unacceptable and unwelcome in polite society. I don't have any grand theories about why that is, although I assume one cause is technology and media. Law professors today know that, if they engage in a certain kind of commentary, they'll be cheered by elites, quoted by the media, featured on television, and invited to climb the academic prestige ladder.
Whatever the cause, I think the effect is obvious. We can look at specific issues—like the absurd ethics attacks on the Supreme Court, or on single judge divisions. I've spoken and written about each of those topics and won't belabor them here. But I think we also need to zoom out and see the bigger picture.
Because the overall message coming from the legal academy as well as the mainstream media is simply this: The judiciary is not to be trusted.
But that gets things entirely backwards. I think the real message we should draw is that the academy and the mainstream media are no longer to be trusted to talk about the judiciary.
Because an originalist judiciary is nothing to be afraid of. An originalist judiciary simply does what society tells it to do—through the Constitution that is beloved by the people, and through the laws that are enacted by legislators chosen by the people.
An originalist judiciary is not a sword—it's a mirror. If you believe in democracy, then you should believe in originalism. So if you don't like having an originalist judiciary, perhaps it's because you don't like America.
That's why I've said that, in the six years that I've been a judge, I've come to an understanding about academic commentary about the Supreme Court: Too many academics regard the views of half the country as garbage. Too many of them believe that any judge who follows the written Constitution, rather than a woke constitution, deserves to be trashed.
Q: One of your opinions that has been recently trashed by academics concerns the states having the power to declare illegal immigration as an invasion. Some critics have charged you with being hostile to immigrants. This criticism is a bit rich, considering you are yourself an immigrant. And you've argued in support of constitutional birthright citizenship—a topic that I agree with you on. Is the criticism of your invasion opinion the kind of academic commentary that you were thinking of?
I'm not going to talk about any pending case, of course. But anyone who reads my prior writings on these topics should see a direct connection between birthright citizenship and invasion. Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others. But birthright citizenship obviously doesn't apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can't imagine what the legal argument for that would be. It's like the debate over unlawful combatants after 9/11. Everyone agrees that birthright citizenship doesn't apply to the children of lawful combatants. And it's hard to see anyone arguing that unlawful combatants should be treated more favorably than lawful combatants.
Q: I've given talks about the Fifth Circuit. I've analyzed en banc votes and cautioned audiences to ignore the critics and recognize that judges are not monolithic, but can be quite different from one another. Were you surprised that no one joined your opinion about invasion, or your opinion about in-state college tuition discounts for illegal aliens?
Well, we are certainly not monolithic. I don't know of any group of passionate Americans that is. And you're certainly right that the critics largely don't know what they're talking about—and what's more, I don't think they care. I have a saying in my chambers—nobody reads.
We're not monolithic at all. But each of us loves our families, cares for our friends, and believes in public service. I love this country, and they do, too. I wasn't born in this country. So I didn't come into this world as an American. But I thank God every day that I will leave this world as an American. If I may return briefly to the topic of the boycott for a moment, we need to recommit ourselves to teaching the next generation of citizens and leaders that we're going to disagree on issues, and that's okay—in fact, that's what makes our country the most successful in human history—that we can take over 300 million passionate Americans and accept that we're going to disagree on every issue under the sun, yet still work together, because there is far more than unites us than divides us.
So yes, we can each have our different positions and approaches, and still respect and work with each other as fellow citizens, neighbors, friends, and co-workers. Everyone comes to their views through their own process. For me, I'm an originalist. Of course, a lot of people say that, and mean different things. So I'll say a bit more. I try my very best to faithfully follow the text and original understanding of whatever provision is before me, to the maximum extent permitted by governing precedent—without regard to either public pressure or personal preference.
But make no mistake: Cultural elites in our country are firmly committed to pressuring judges to reach results that they want. And they do it because it works. That's a common theme of some of my past speeches—what I call "fair-weather originalism." I firmly believe that we should either embrace the pressure, or pursue another line of work. Because pressure is part of the job. So if you see pressure as a problem, then this is not the job for you. If you're going to do this job, you need to see pressure as a privilege, not as a problem. I'm deeply privileged to serve on the U.S. Court of Appeals for the Fifth Circuit with each and every one of my colleagues, whether we agree on every case or not.
And we Texans are deeply privileged to be represented by such dedicated jurists on the Fifth Circuit, whether we agree with every case or not. Thank you Judge Ho.
