New Orleans, LA – In an unusually candid concurrence, U.S. Court of Appeals for the Fifth Circuit Judge James C. Ho has voiced sharp criticism of the U.S. Supreme Court’s handling of an Alien Enemies Act (AEA) case. The Trump appointee’s remarks, appended to a recent order that reinstated the case on the appellate court’s docket, express frustration over the Supreme Court’s decision to overturn a unanimous Fifth Circuit ruling.
Judge Ho’s concurrence detailed the procedural history of the case, which originated in the U.S. District Court for the Northern District of Texas. The plaintiffs, Venezuelan immigrants facing summary deportation under the 18th-century AEA, were represented by the American Civil Liberties Union (ACLU). The ACLU, in a controversial move, bypassed the district court to file an interlocutory appeal directly to the Supreme Court, effectively halting the Trump administration’s AEA deportations.
The Supreme Court’s decision, issued on a Saturday, a rare occurrence, overturned the Fifth Circuit’s dismissal of the appeal, which had been based on jurisdictional grounds. The high court’s 7-2 per curiam ruling criticized the district court’s handling of the case, specifically Judge James Hendrix’s alleged inaction, and the Fifth Circuit’s misrepresentation of the timeline.
Judge Ho’s concurrence defended Judge Hendrix, also a Trump appointee, arguing that the Supreme Court’s characterization of his actions as “inaction” was unfair. He contested the Supreme Court’s timeline, which began counting from the moment the plaintiffs filed their initial motion for emergency relief at 12:34 a.m., arguing that Judge Hendrix was justified in allowing the government time to respond.
Ho also took issue with the Supreme Court’s implication that district judges should monitor their dockets at all hours. “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,” he wrote.
The judge further criticized the Supreme Court’s apparent disregard for the government’s credibility, noting that the ACLU’s decision to bypass the district court stemmed from a lack of trust in the Department of Justice’s assurances. He emphasized the importance of affording the executive branch, including the president, the same respect given to other litigants, citing instances where previous Democratic presidents had faced legal challenges.
“Our current President deserves the same respect,” Ho asserted.
In his concluding remarks, Judge Ho expressed concern that the Supreme Court’s treatment of the district judge and the executive branch would undermine respect for the judiciary. “I worry that the disrespect they have been shown will not inspire continued respect for the judiciary, without which we cannot long function,” he wrote.
The concurrence underscores the tension between the appellate courts and the Supreme Court, particularly in cases involving politically sensitive issues like immigration and executive power.
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