It Could Happen Here - The Scariest Court in America feat. Steven Monacelli & Dr. Michael Phillips

Episode Date: March 24, 2026

During the Civil Rights Era, the U.S. Fifth Circuit Court of Appeals in New Orleans was one of the most liberal courts in the United States. It became an ally of the Civil Rights Movement that knocked down Jim Crow laws across the Deep South. But because of a string of appointments by conservative presidents starting with Ronald Reagan in the 1980s, it has transformed into one of the country’s most reactionary judicial bodies, with rulings that banned drag shows, endangered nationwide access to the so-called “abortion pill,” and threatened to give domestic abusers access to handguns. This episode looks at how the Fifth Circuit turned into the scariest court in America -- and in particular the career of one extremist judge, James Ho, who one day might end up on the United States Supreme Court.  Sources:  Jack Bass,  “John Minor Wisdom, Appeals Court Judge Who Helped to End Segregation, Dies at 93,” New York Times, May 16, 1999, https://www.nytimes.com/1999/05/16/us/john-minor-wisdom-appeals-court-judge-who-helped-to-end-segregation-dies.html Jonathan Entin, “The Surprising History of the 5th Circuit Court of Appeals,” Governing, January 23, 2024, https://www.governing.com/policy/the-surprising-history-of-the-5th-circuit-court-of-appeals. Eleanor Klibanoff,  “Again and again, U.S. Supreme Court slaps down 5th Circuit,” The Texas Tribune, July 3, 2024, https://www.texasstandard.org/stories/supreme-court-5th-circuit-court-rulings-texas-overturned/ Mattathias Schwartz, “This Federal Judge Is the ‘Tip of the Spear’ of Trump-Era Conservatism,” New York Times, August 9, 2025, https://www.nytimes.com/2025/08/09/us/judge-ho-trump-border.htmlSee omnystudio.com/listener for privacy information.

This is an I-Heart podcast. Guaranteed Human. You know Roald Dahl. He thought up Willie Wonka and the BFG. But did you know he was a spy? In the new podcast, The Secret World of Roll Dahl, I'll tell you that story, and much, much more. What?

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In 2023, Bachelor star Clayton Eckerd was accused of fathering twins. But the pregnancy appeared to be a hoax. You doctored this particular test twice, Ms. Owens, correct? I doctored the test ones. It took an army of internet detectives to uncover a disturbing pattern. Two more men who'd been through the same thing. Greg Gillespie and Michael Mancini. My mind was blown.

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get outside, and get your hands in the dirt. You can get the Stuff You should know Think Spring playlist on the IHeart Radio app, Apple Podcasts, or wherever you get your podcasts. All Zone Media. I'm Michael Phillips, an historian and the author of a book about racism in Dallas called White Metropolis, and the co-author with longtime journalist Betsy Frioff of the history of eugenics in Texas called The Purifying Knife. I'm Stephen Monticelli. I'm a journalist who specializes in covering political extremism and far-right internet culture for the Texas Observer, the Barb wire, and other publications. Today we'll be talking about the Fifth Circuit. And we'll start with a man named James Ho.

who on what might have been the biggest day of his judicial career so far, couldn't have picked a creepier setting. The 52-year-old's legal career has rocketed forward at light speed. Born in Taiwan and a graduate of Stanford, he signed up as an attorney for the White Shoe law firm Gibson Dunn in California. In 2000, at age 27, he joined a high-powered legal team that forever shaped the history of the United States. From NBC News in Washington, this is Meet the Press with Tim Russert.

Our issues this Sunday, 36 days after the election, Al Gore ends his campaign. For the sake of our unity as a people and the strength of our democracy, I offer my concession. George W. Bush will be the 43rd President of the United States. I'm thankful to the American people for the great privilege of being able to serve. as your next president. Young and almost entirely unknown outside of legal circles, James Ho joined some of the most famous conservative lawyers in the country in the year 2000 to convince the United States Supreme Court to stop the hotly contested presidential vote count in Florida.

That move elevated President George W. Bush to the White House. In this effort, James Ho rubbed shoulders with right-wing luminaries, like the man who in five years would be the chief justice of the Supreme Court. John Roberts. Ho rocketed to judicial superstardom. He clerked for Supreme Court Justice Clarence Thomas for a couple of years. Then from 2008 to 2010, he succeeded Ted Cruz as Solicitor General of Texas. There he handled appeals filed by the state in cases heard by the state Supreme Court and the U.S. Supreme Court.

On January 4th, 2018, Ho celebrated his next rapid climb up the judicial ladder when he is sworn is the newest judge on the United States Fifth Circuit Court of Appeals, which oversees federal cases that originate in Texas, Mississippi, and Louisiana. Hose swearing-in ceremony took place at the mansion of Dallas real estate billionaire Harlan Crow. You've probably heard that name before, because Crow has made news with the revelation that he lavished hundreds of thousands of dollars in gifts and favors on Supreme Court Justice Clarence Thomas, including cruises to Indonesian islands on the businessman's 162-foot super yacht and a $119,000 Bible that once belonged to leading abolitionist Frederick

Douglas. Crow flew Thomas to Dallas on his private jet so the justice could swear in his former clerk. The surroundings included Crow's unnerving souvenirs once described on the program Inside Edition. Questions are being raised today about Supreme Court Justice Clarence Thomas's friendship with a billionaire who collects Nazi memorabilia. Published reports say Dallas Tycoon Harlan Crow's controversial collection includes Hitler's notorious autobiography Mind Kompf, signed by Hitler, oil paintings by Hitler, and linen napkins embroidered with the Nazi swastika. The collection is housed at Crow's Mansion in Dallas.

I can't get over the collection of Nazi memorabilia, said one guest who saw the Nazi treasure trove. You sort of just gasp when you walk into the room. The estate also includes what Crowe is called the Garden of Evil, a collection of imposing statues of past authoritarian leaders like Vladimir Lenin, Joseph Stalin, Mao Zedong, Nikolai Chochescu, the eccentric Romanian tyrant violently deposed in 1989, as well as a bust of Gavarillo Princep, the Bosnian-Serb nationalist who triggered World War I with his assassination of Austrian Archduke, Franzi, Ferdinand. Proclaims that his clutch is somehow a statement of his hatred for both communism and fascism. The creepy artwork perhaps foreshadowed Ho's ominous career in the Fifth Circuit Court of Appeals. On that bench, he has become infamous for weirdly written and extreme opinions in which he has suggested that the children of migrants might not be eligible for birthright citizenship because the country is being, quote, invaded and that abortion actually somehow injures doctors

because they are denied the intense pleasure of delivering babies. Those antics might lead him to one day occupy a seat on the United States Supreme Court, potentially succeeding Thomas or Samuel Alito, the two oldest justices on the nation's highest bench. In this episode, we'll look at the career of Judge James Ho, his alarming right-wing judicial activism, and the strange history of the Fifth Circuit Court of Appeals, which since the Reagan administration has transformed for one of the most liberal judicial bodies

in the country to perhaps the scariest court in America. Given its current reactionary reputation, it's a bit ironic the Fifth Circuit Court convenes in a New Orleans courthouse named after John Minor Wisdom, a New Orleans native who formed a critical part of a quartet of liberal judges known simply as the Four, who in the 1950s and 1960s issued a series of revolutionary rulings that advanced the civil rights movement. President Dwight Eisenhower appointed wisdom to the bench in 1957. He quickly formed an alliance with three other liberal judges on the Fifth Circuit, Albert P. Tuttle of Georgia, John R. Brown of Texas, and Richard T. Rivis of Alabama. Rivers was the only Democrat on the squad that came to be known as

the Fifth Four. These liberals typically prevailed over the conservatives serving on the Fifth Circuit, and at that point, the Fifth Circuit heard cases from states that spread across the core of the one-time Confederacy, including Louisiana, Florida, Alabama, Mississippi, Texas, and Georgia. This placed the Fifth Four on the front lines of the civil rights struggle. In 1958, the Fifth Circuit began chipping away at Jim Crow. The court heard the case of Joe Dorsey, Jr., of New Orleans, challenging Louisiana law that outlawed matches between black and white boxers. Wisdom wrote the majority opinion, which declared such legislation made a mockery of the Equal Protection Clause of the 14th Amendment to the United States Constitution.

That opinion, like many, Wisdom wrote, would be upheld the following year by the Supreme Court that was presided over by Chief Justice Earl Warren. Louisiana integrated boxing matches, but for years outside the ring, the arenas divided into black and white seating. In the coming years, the Fifth Circuit forced St. Helen Parish in Louisiana to reopen their schools after that school board voted to close all campuses to prevent integration. The Fifth Circuit Court ordered the University of Mississippi to admit an African American student, James Meredith. In his opinion, Wisdom wrote that Ole Miss, as it's known, had engaged in a carefully calculated campaign of delay, harassment, and masterly inactivity. riots broke out as federal troops had to enforce the order. James H. Meredith is formally enrolled at the University of Mississippi, ending one chapter in the federal government's efforts to desegregate the university. The town of Oxford is an armed camp following riots that accompany the registration of the first Negro in the university's 118 year history.

Much of this film record was destroyed when our cameraman Gordon Yoder was attacked, but he did salvage pictures. of Governor Ross Barnett at the scene. The governor fought the court order long and bitterly before modifying his stand, saying Mississippi was overpowered by the federal government. President Kennedy appealed to the students and to the people of the state to comply peacefully with the law and bring the crisis to an end.

Even as he talked, riots were breaking out in Oxford. Americans are free and short to disagree with the law, but not to disobey it. For any government of laws and not of men, and not of man, no man, however prominent or powerful, and no mob, however unruly or boisterous, is entitled to defy a court of law. In 1963, the Fifth Circuit ordered the desegregation of community centers, cultural centers, playgrounds, and public parks.

The next year, the court ruled that jury selection system in Orleans, Paris, where, as wisdom noted, no Black had ever sit on a grand jury or trial jury panel violated the Constitution. Two years after that, the Fifth Circuit overturned Louisiana's voter registration literacy tests, which required a citizen to pass in the judgment of white officials, a written test on the Constitution. Such laws had long disenfranchised, impoverished African Americans and whites. Perhaps wisdom's most significant opinion came with the 1968 United States v. Jefferson case. which blocked states from avoiding compliance with the Brown v. Board of Education decision by setting up so-called, quote, school choice plans, in which parents allegedly freely chose to send their children to segregated schools. Wisdom wrote, The Constitution is both colorblind and color conscious. To avoid conflict with the Equal Protection Clause, a classification that denies a benefit, causes harm, or imposes a burden must not be.

be based on race. In that sense, the Constitution is colorblind, but the Constitution is color-conscious to prevent discrimination from being perpetuated and to undo the effects of past discrimination. Quining a phrase that would later ignite fierce white backlash against civil rights north and south, wisdom said school systems needed to move beyond ostensibly not discriminating and to take, quote, affirmative action to bring about a unitary non-racial system. That phrase would provide a legal foundation for school busing as a means of genuinely integrating schools and also introduced the concept of affirmative action,

hiring practices, and other stubborn aspects of racial exclusion. The Fifth Circuit's record of judicial progressivism continued through the 1970s. A 1976 decision by the Fifth Circuit, for instance, required public colleges and universities in Texas to recognize gay student organizations. Meanwhile, moderate Republicans tried to persuade Richard Nixon to nominate wisdom for the United States Supreme Court.

However, Attorney General John Mitchell, who later went to prison for his role in the Watergate scandal, squashed the idea. He complained that the judge was a damn left-winger, who would supposedly be as bad as a famously liberal Chief Justice Warren. President Clinton would give wisdom the Presidential Medal of Freedom in 1993. wisdom died six years later. If he miraculously returned, wisdom would not recognize the appeals court

that he spent so much of his life serving. We'll talk about the transformation of the Fifth Circuit of Appeals, the extreme and disturbing decisions that has made since the start of the Trump era, and the career of one of that court's most infamous judges when we come back from our hopefully less infamous sponsors.

Canadian women are looking for more. More out of themselves, their businesses, their elected leaders, and the world are out of them. And that's why we're through. thrilled to introduce the Honest Talk podcast. I'm Jennifer Stewart. And I'm Catherine Clark.

And in this podcast, we interview Canada's most inspiring women. Entrepreneurs, artists, athletes, politicians, and newsmakers, all at different stages of their journey. So if you're looking to connect, then we hope you'll join us. Listen to the Honest Talk podcast on I Heart Radio or wherever you listen to your podcasts. I became a millionaire overnight, but lost everything that actually mattered. Wait a minute, Sophia. Did you just say he lost everything? That's right, it's inheriting too much drama week on the OK Storytime podcast, so we'll find out soon. This person writes, I just inherited a fortune after losing my mom,

and now my girlfriend's entire family is coming out of nowhere with their hands out. One sibling wants me to fund their whole lifestyle. Another vanished for four years and suddenly reappeared. And my girlfriend is already giving my money away. Hold on, Sophia. So the girl he wants to marry is already sending money out the door. And that's just the beginning. He makes a plan, sets up a trust, and finally thinks he has everything under control. Okay, so things work out then?

Let's just say the people he trusted the most are the ones who ended up shocking him the most. So does the money end up being worth going through all that? To find out, listen to the OK Storytime podcast on the Iheart radio app, Apple Podcasts, or wherever you get your podcasts. You know Roll Doll, the writer who thought up Willie Wonka, Matilda, and the BFG. But did you know he was also a spy? Was this before he wrote his stories? It must have been. Our new podcast series, The Secret World of Roll Doll, is a wild journey through the hidden chapters of his

extraordinary, controversial life. His job was literally to seduce the wives of powerful Americans. What? And he was really good at it. You probably won't believe it either. Okay, I don't think that's true. I'm telling you, the guy was a spy. Did you know Dahl got cozy with the Roosevelt's?

Played poker with Harry Truman and had a long affair with a congresswoman. And then he took his talents to Hollywood, where he worked alongside Walt Disney and Alfred Hitchcock, before writing a hit James Bond film. How did this secret agent wind up as the most successful children's author ever, and what darkness from his covert past seeped into the stories we read as kids. The true story is stranger than anything he ever wrote. Listen to the secret world of Roll Dahl on the IHeart Radio app, Apple Podcasts, or wherever you get your podcasts. Why hasn't a woman formerly participated in a Formula One race weekend in over a decade? Think about how many skills they have to

develop at such a young age? What can we learn from all of the new F1 romance novels suddenly popping up every year. He still smelled of podium champagne and expensive friction. And how did a 2023 event called Wagageddon change the paddock forever? That day is just

seared into my memory. I'm culture writer and F1 expert Lily Herman, and these are just a few of the questions I'm tackling on no grip, a Formula One culture podcast that dives into the under-explored pockets of the sport. In each episode, a different guests and I will go deeper into the wacky mishaps

scandals and sagas, both on the track and far away from it, that have made F1 a delightful, decadent dumpster fire for more than 75 years. Listen to no grip on the IHeart Radio app, Apple Podcasts, or wherever you get your podcasts. In 1981, the federal judiciary was reorganized. The Fifth Circuit Court now heard appeals only from Mississippi, Louisiana, and Texas. A new 11th Circuit court now hears cases from Alabama, Georgia, and Florida. We should provide a hopefully brief, Civic's lesson here. The fifth court consists of 17 active judges and nine senior judges. When a side loses a case in a federal district court, they can appeal to a circuit court, where the case is heard by a three-judge panel. In some cases, if one side disagrees with the judgment of the panel, they may

appeal the decision to the full judicial court. Among the active judges, those appointed by Republican presidents outnumber those appointed by Democrats by a margin of 12 to 5. Donald Trump appointed more than a third of these judges, six and all. Each, of course, could serve on the court for the rest of their life. The Fifth Circuit also has eight senior judges who are semi-retired, but preside over a limited number of cases. Six of them were also appointed by Republican presidents stretching back to Ronald Reagan. Even in that hyper-conservative company, James Ho has stood out. Mike Davis, the president of the pro-Trump Article III project, a group dedicated to pushing federal courts further right has said, quote,

on every crucial but controversial legal issue, Jim Ho is constantly the tip of the spear. It has been a cliche among the American right wingers that liberal judges from the time of Franklin Roosevelt had become judicial activists for abusing their positions on the bench to advance their political agendas rather than impartially ruling on the law,

calling balls and strikes. Ho's open political advocacy, however, has raised no alarms for those saying presume advocates for judicial neutrality. While he served as Texas's Solicitor General, Ho did pro bono work for the first Liberty Institute. A Christian Right organization headquartered in Plano, Texas, just north of Dallas, that won a case for a Washington State high school football coach who was fired because he violated school policy by leading his team in prayer after each game. The group has also represented bakers who refused to make wedding cakes for same-sex couples. As a judge, Ho led a boycott of legal clerks who graduated from Yale Law School to punish that institution for its supposed leftist cancel culture and intolerance of conservative views. During a speech to the Far Right Heritage Foundation, the authors of Project 2025, Ho ridiculed lawyers with, quote, fancy credentials, fancy law schools, fancy clerkships,

fancy law firms and government jobs. He claimed that issued liberal opinions for no other purpose than winning popularity. He urged young conservatives to assert themselves against a supposed popularity of political correctness. In addition to serving on the bench, Ho could be considered an activist, particularly on culture war issues like abortion. He's condemned abortion as the, quote, immoral, tragic, and violent taking of innocent human life. In 2018, he upheld a Texas law that, required the cremation or burial of fetal remains, a potentially costly burden for women

receiving medical treatment. And the state of Texas argued that any potential financial burdens to women or clinics were irrelevant since the Texas Conference of Catholic Bishops made a pledge to bury the remains for low cost or even for free. Such a promise, of course, was not legally binding. A district court overturned the law, but Ho and the Fifth Circuit reinstated it, arguing that coerced burial protected religious freedom of the Catholic bishops. Quote, The First Amendment expressly guarantees the free exercise of religion, including the right of bishops to express their profound objection to the moral tragedy

of abortion, Ho wrote. Texas still requires that fetal remains receive burial or cremation. As we'll explain later, it's not only on the issue of abortion that Ho has staked out in extreme position. In Mans v. Sessions, the Fifth Circuit Court by an 8-to-7 vote narrowly avoided overturning a federal gun law that prohibited interstate gun sales. Ho offered a bitter dissent, quoting his mentor, Clarence Thomas, and complaining that in spite of the wide open access to firearms in this country, the Second Amendment had become, quote, a second-class right. In his opinion, Ho ridiculed advocates of gun control of suffering from hoplophobia, their rash, fear of guns. Ho and the entire Fifth Circuit achieved a national infamy after the Supreme Court

erased almost half a century of abortion rights when it overturned the Roe v. Wade decision in the Dobbs v. Women's Health Organization case on June 24th, 2022. A little more than a year after that landmark case, on August 16, 2023, the Fifth Circuit upheld tightened access for women to Mithapristone, the so-called abortion pill, which accounts for more than half of all terminated pregnancies in the United States. Originally approved by the Food and Drug Administration in 2000, but only for prescription by hospitals and other medical facilities, the FDA expanded access to the medication in 2016 and gave doctors the right to directly prescribe Miffipristone. In response to the COVID-19 pandemic, starting in 2021, women could receive it through the mail. In 2024, an anti-abortion

organization, the Alliance for Hippocratic Medicine, intentionally incorporated in 2022 in Amarillo, which placed it in the jurisdiction of the famously anti-abortion federal district judge, Matthew J. Casmeric. Like Judge Ho, Casmeric belonged to the First Liberty Institute. While being considered for the federal bench, he unsuccessfully tried to conceal his authorship of legal articles on gay rights he thought might jeopardize approval of his domination by the U.S. Senate. Casmeric has described gay and trans people as mentally disordered. The Alliance for Hippocratic medicine filed suit in Casimir's court seeking to overturn the FDA's approval of Mitha Preston, even though decades of research had demonstrated its safety and its effectiveness for treating

Cushing syndrome a severe endocrine disorder. None of the doctors in the Alliance had ever been involved in a medical case in which the use of Mitha Preston had been considered. In his opinion, Casimiric showed his disdain for medical personnel providing women reproductive care, referring to them as, quote, abortionists and called terminating pregnancy through medication, quote, starving the unborn human until death. Courts require that parties have what judges call standing in order to file a lawsuit. That means, for instance, that one party has been in some way directly injured by the other party. President Joe Biden's Food and Drug Administration questioned how the doctors and the Alliance for Hippocratic Medicine

had in any way been directly harmed because women have access to abortion medications. Casmeric found a fanciful way to grant the alliance a right to sue. He claimed that treating the rare complications from Mithapristone overwhelmed hospitals and placed, quote, enormous pressure and stress on the doctors during emergencies and complications. After granting the alliance standing, Casmeric issued a preliminary injunction to spending the FDA's approval of the drug. The decision would go into effect in seven days in order to give the federal government a chance to file an appeal. In his decision, Casmeric cited two studies that claimed the drug was harmful, but both had been retracted by a medical journal. In effect, Casmeric had banned Mitha Pristone nationwide.

The United States Justice Department and Danco Laboratories, Mifififistone's manufacturer, appealed, and the case went to the Fifth Circuit. Judicial chaos surrounding the status of Mitha Pristone reigned within hours as ABC 7 in Los Angeles reported. A judicial bombshell involving abortion. that could have an impact in all 50 states, a Texas federal judge revoking FDA approval of an abortion pill that's been used for more than 20 years. But another federal judge in Washington state then issuing a contradictory ruling, setting up another major battle over a woman's right to choose. I witness news reporter Amy Powell joining us live in studio with more tonight.

Amy. And Michelle, this is causing a lot of concern. The reversal of Roe versus Wade by the Supreme Court was supposed to mean that abortion laws would be left up to individual states. But today, a Texas federal judge issued a ruling that could end access to an abortion pill in all 50 states. Shortly after the Texas judge issued his decision, a judge in Washington state issued a ruling ordering the FDA

to make no changes to the availability of Miffipristone. Those conflicting orders mean this case is likely to end up in the Supreme Court. The Mitha Pristone case went to the Fifth Circuit where Judge Ho would write an opinion critics characterized as disturbing, baffling, and bizarre. We'll talk about what happened in the Miffipristone case and how Judge Ho, an immigrant himself, has suggested that the children of migrants might not be eligible for birthright citizenship because the United States is, in his words, being invaded. But first, we'll hear some hopefully not too bizarre messages from our sponsors.

Canadian women are looking for more. More to themselves, their businesses, their elected leaders, and the world are of them. And that's why we're thrilled to introduce the Honest Talk podcast. I'm Jennifer Stewart. And I'm Catherine Clark. And in this podcast, we interview Canada's most inspiring women. Entrepreneurs, artists, athletes, politicians, and newsmakers, all at different stages of their journey. So if you're looking to connect, then we hope you'll join us.

Listen to the Honest Talk podcast on I Heart Radio or wherever you listen to your podcasts. I became a millionaire overnight, but lost everything that actually mattered. Wait a minute, Sophia. Did you just say he lost everything? That's right. It's inheriting too much drama week on the OK Storytime podcast, so we'll find out soon. This person writes,

I just inherited a fortune after losing my mom, and now my girlfriend's entire family is coming out of nowhere with their hands out. One sibling wants me to fund their whole lifestyle. Another vanished for four years and suddenly reappeared, and my girlfriend is already giving my money away. Hold on, Sophia. So the girl he wants to marry is already sending money out the door.

And that's just the beginning. He makes a plan, sets up a trust, and finally thinks he has everything under control. Okay, so things work out then? Let's just say the people he trusted the most are the ones who ended up shocking him the most. So does the money end up being worth going through all that? To find out, listen to the OK Storytime podcast

on the Iheart radio app, Apple Podcasts, or wherever you get your podcasts. You know Roaldol, the writer who thought up Willie Wonka, Matilda, and the BFG. But did you know he was also a spy? Was this before he wrote his stories? It must have been. Our new podcast series, The secret world of Roll Doll is a wild journey through the hidden chapters of his extraordinary, controversial life.

His job was literally to seduce the wives of powerful Americans. What? And he was really good at it. You probably won't believe it either. Okay, I don't think that's true. I'm telling you, the guy was a spy. Did you know Doll got cozy with the Roosevelt's? Played poker with Harry Truman and had a long affair with a congresswoman.

And then he took his talents to Hollywood, where he worked alongside Walt Disney and Alfred Hitchcock, before writing a hit James Bond film. How did this secret agent wind up as the most successful children's author ever? And what darkness from his covert past seeped into the stories we read as kids. The true story is stranger than anything he ever wrote. Listen to the secret world of Roll Dahl on the IHeart Radio app, Apple Podcasts, or wherever you get your podcasts.

Why hasn't a woman formerly participated in a Formula One race weekend in over a decade? Think about how many skills they have to develop at such a young age. What can we learn from all of the new F1 romance novels suddenly popping up every year? He still smelled of podium champagne and expensive friction. And how did a 2023 event called Wagageddon change the paddock forever? That day is just seared into my memory. I'm culture writer and F1 expert Lily Herman, and these are just a few of the questions I'm tackling on no grip,

a Formula One Culture podcast that dives into the under-explored pockets of the sport. In each episode, a different guests and I will go deeper into the wacky mishap, scandals and sagas, both on the track and far away from it, that have made F1 a delightful, decadent dumpster fire for more than 75 years. Listen to No Grip on the IHeart Radio app, Apple Podcasts, or wherever you get your podcasts. When the Fifth Circuit heard the appeal of Casimir's ruling, Ho didn't recuse himself from the case, even though his wife, Allison, a lawyer, has repeatedly appeared at events sponsored by the Alliance Defending. freedom, one of the litigants, and even received speaking fees from the organization. Hope brushed off this obvious conflict of interest.

On August 16, 2023, that court didn't completely uphold Kismarik's ruling, but it did impose numerous restrictions on the abortion pill called Miffipristown, claiming that the FDA didn't fully consider its potential health risks. If the Supreme Court had upheld the Fifth Circuit's opinion, women would not have been allowed to receive a prescription through the mail after online medical appointments. They would have been able to receive the prescription only after a direct visit with the doctor and after three in-person follow-up appointments. The window in which women would have been allowed to take Mithopristone would have been cut from 70 days of pregnancy to about 49. Ho wanted to go much further than the Fifth Circuit's majority.

He wanted to rescind the FDA's approval of Mephaprestone, which would have removed the drug from the market entirely. When judges agree with a majority on a panel, they can run. write a concurring opinion that gives them a chance to grandstand about a case. This is what Ho did in his concurrence when he bitterly complained that some believe that, quote, no one should ever question the FDA. Ho then asked the public to pity the obstetricians he claimed suffer because of women's abortion rights. Ho drew on environmental case law, which acknowledges that a member of the public might

believe that they've suffered a loss when, for instance, a park is destroyed because it is the location of a new mining operation, and that they can sue on that basis. Ho argued that doctors could suffer the same sort of damages when a pregnancy is medically ended. In his concurrence on Mithiphristone, Ho wrote the following. Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. and doctors delight in working with their unborn patients

and experience an aesthetic injury when they are aborted. Leo Yu is an assistant professor of law at the University of Massachusetts at Dartmouth who specializes in civil rights law. You actually received law degrees in two countries, his native China and in the United States at Southern Methodist University in Dallas. While he lived in Texas, he lived under the jurisdiction of the first. Fifth Circuit and saw close hand the legal chaos the Fifth Circuit is created in the states of Texas, Louisiana, Mississippi. In 2021, he created the podcast, Plead the Fifth. Professor Yu believes

that when Ho writes extreme opinion, such as in the Methaprostone case, he's desperately trying to get one man's attention. He is auditioning all the time to the Supreme Court, and And he went so far to create something that is quite honestly just not even sensible. It's like, you know, people want to see cute little ultrasounds of babies. And that makes them having the standing to challenge abortion pills. They wouldn't be able to see those cute little ultrasounds anymore. And it just, that part of rationale is quite just insane. I think that part, I don't know if that is something that he truly believes.

And I would say that it's hard to imagine for anybody who truly believe that sort of analysis. So I put that part of analysis as another way from Justice Holt trying to audition for the Supreme Court. Like, hey, you think you found a concert to the judge somewhere in D.C. Look at me. I'm even more. And that's what it is. No one would accuse the United States Supreme Court under John Roberts of being moderate. but repeatedly, Roberts and the other justices have taken the Fifth Circuit to task for going to extremes in its ruling. As Texas Tribune writer Eleanor Klybinoff put it, quote, if the Fifth U.S. Circuit Court of Appeals was a boxer, you'd bet on the other guy. Writing a Supreme Court's reaction of Fifth Circuit rulings in July 2024,

Klebinoff noted that only three of the tribunal's decisions had been upheld, while eight had been overturned, a one-lost record that ranked amongst the worst among circuit courts in the country. In the Mepha Pristone case, Justice Brett Kavanaugh, hardly a Bolshevik, expressed dismay that the Alliance for Hippocratic Medicine had been granted standing. Kavanaugh wrote this, quote, For a plaintiff to get in the federal courthouse door and obtain a judicial determination of what the governing law is, the plaintiff cannot be a mere bystander,

but instead must have a personal stake in the dispute. End quote. If the standard set by Judge Ho and his peers in New Orleans remained, Kavanaugh warned, quote, virtually every citizen would have standing to challenge virtually every government action that they do not like. Governing, he suggested, would become impossible. It wasn't just on the issue of legal standing that the Supreme Court found the Fifth Circuit court's judgment lacking. In the case of Rahimi v. the United States, the Fifth Circuit overturned federal law that prohibited domestic abusers from buying firearms. The highest court on June 21, 2024, overturned that decision by an 8-to-1 margin.

Chief Justice John Roberts, who generally supports a very broad view of gun rights, said that history, quote, confirms what common sense suggests. When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. Roberts also suggested that the Fifth Circuit misunderstood the Supreme Court's view of the Second Amendment. Professor, you told us that as conservative as Supreme Court majority might be, outside of Clarence Thomas, they have found the Fifth Circuit's rulings to be an embarrassment and conservative judicial philosophy. On that, again, I think that was an A-2-1 opinion, and Clarence Thomas was the only person who would agree was the Fifth Circuit. So in general, I think the Supreme Court is definitely conservative.

but the Supreme Court appreciate a certain type of conservativeness that they can chute on. And it's something that it can lace with some academic legitimacy and not just some sort of attention-seeking paragraphs that would make people feel some sort of feelings. On the last day of its 24 session, the Supreme Court sent back to the Fifth Circuit, a case involving a 2021 Texas law that limited the ability of social media companies to suspend user accounts for extremist or violence inciting content. The law was inspired by the decision of what was then called Twitter, and now X, as well as other social media companies, to de-platform Donald Trump, after the president encouraged his supporters to ransack the Capitol and stop the counting of electoral college votes on January 6, 2021. The Fifth Circuit previously upheld the law, claiming that it rejected, quote, the idea that corporations have a freewheeling First Amendment right to censor what people say. Ho and his allies on the Fifth Circuit, however, are fine with censoring free expression by members of the LGBT community. In March 2023, Walter Wendler, the president of West Texas A&M University, a public institution,

canceled at Drag Show's schedule at Legacy Hall, a campus building. Organizers plan to use proceeds from the performance to raise money for the Trevor Project, a nonprofit group that seeks to prevent suicides in the LGBTQ plus community. In a statement canceling the show, Wendler explicitly said that his private religious beliefs guided his decision. West Texas A&M University will not host a drag show on campus. I believe every human being is created in the image of God and therefore a person of dignity. Does a drag show preserve a single thread? of human dignity? I think not. As a performance exaggerating aspects of womanhood, sexuality,

femininity, gender, drag shows stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood. Drag shows are derisive, divisive, and demoralizing misogyny, no matter what the stated intent. intent. Such conduct runs counter to the purpose of West Texas A&M. A person or group should not attempt to elevate itself or a cause by mocking another person or group. As a university president, I would not support blackface performances on our campus, even if told the performance is a form of free speech or intended as humor. It is wrong. Spectrum WT, a pro-LGBQ student organization, filed a suit challenging the ban and requested an injunction blocking Wendler's action. But Judge Kazmirik, the same jurist who initially blocked access to Miffa-Pristone, sided with West Texas A&M and issued a preliminary ruling preventing the drag show from taking place pending a trial. He said the performance supposed sexual content lacked free speech protections. quote, the First Amendment does not prevent school officials from restricting vulgar and lewd conduct

that would undermine the school's basic educational mission, particularly in settings where children are physically present, Casimir wrote in his September 22, 2023 opinion. Spectrum WT appealed. The case went to the Fifth Circuit where a three-judge panel heard arguments on whether the fundraiser could proceed. On August 18, 2025, by a two-to-one vote, The panel reversed Casmaric's ruling. Judge Leslie Southwick, a George W. Bush appointee, and a Bill Clinton appointed U.S. Circuit Judge James Dennis, ruled that West Texas A&M had violated the gay student organization's expressive rights. Predictably, Ho dissented. He simply echoed the arguments used by the university president, insisting that banning drag shows somehow advanced inclusivity. University officials have determined that drag shows are sexy.

for the same reason that blackface performances are racist. And Supreme Court precedent demands that we respect university officials when it comes to regulating student activities to ensure an inclusive educational environment for all. Spectrum WT's victory proved temporary. The panel's decision would not go into effect until the case was heard by the entire Fifth Circuit Court. Meanwhile, a full trial unfolded in Casimir's court in January. Not surprisingly, he ruled in favor of West Texas A&M. He said that the student group had not proven that the show was meant to convey a message

that might be protected by the First Amendment and that by their nature, drag shows have sexualized content and the university had the right to regulate on-campus grounds. The hearing before the full Fifth Circuit was canceled, although Spectrum's legal team at the Foundation for Individual Rights and Expression plans a different appeal. On February 25th, a panel of the Fifth Circuit also upheld a number of the Fifth Circuit also upheld a new state ban on certain types of drag performances. Judge Kurt Englehart, appointed to the Fifth Circuit by President Donald Trump, expressed doubt that such shows were protected by the Constitution,

especially said, quote, in the presence of minors. While the Fifth Circuit chipped away at free speech rights for the LGBTQ-plus community, it advanced the rights of states to impose speech on public school teachers. The full court by a 12-6 margin lifted a district court's hold on a Louisiana state law requiring teachers display poster-sized copies of the Ten Commandments in public school classrooms. In spite of the First Amendment's prohibition on establishing a state religion or requiring religious practice and the efforts of the founders of the American Republic like Thomas Jefferson to erect a wall of separation between church and state, James Hoes celebrated the decision.

The Louisiana law was not only constitutional host said, it, quote, affirms our nation's highest and most noble traditions. That claim left Professor Yu baffled. The question is, is he a historian? When he said that the founding members of this country would like that, what historical record is he relying on? But isn't that even anti-common knowledge that our founders would really resent that, to push our newly established republic to a situation where we push our city?

to believe in certain things religiously. That is exactly the reason why they left Europe. The Fifth Circuit has presented a threat not only to the separation of church and state, free speech, and LGBTQ plus rights, but it has also placed the rights of workers in its crosshairs. On August 19th, the United States Fifth Circuit Court of Appeals upheld an injunction requested by attorneys for Elon Musk's Space X Corporation, ruling that the structure of the National Labor Relations Board is unconstitutional and prohibiting it from acting against that company and two other corporations, the NLRB charged with labor law violations. As has often happened, the Fifth Circuit Court ruling conflicts with that of another Circuit court, the Ninth Circuit, which upheld the power granted by

the NLRB. This split almost certainly guarantees the case will end up in front of a Supreme Court that has been no friend of American workers. On rare occasions, the Fifth Circuit might still acknowledge that society is tilted against the poor and people of color. A panel made up of Fifth Circuit judges ruled that Labine Conan could proceed with our lawsuit against the United States Post Office, a landlord who owns two properties in Ulyss, a suburb between Dallas and Fort Worth, Conan claimed that beginning in 2020, two local postal employees abruptly stopped delivering mail first to her and then to her tenants because she said they didn't like the idea that a black person owned the properties. The post office is mostly

shielded from lawsuits by a legal doctrine called sovereign immunity, under which, as legal analyst Elie Mistal explains, quote, the government cannot be held liable for monetary damages arising out of actions taken by the government. What was unique about the United States Postal Service v. Knaan case, however, was that in this circumstance the government was causing intentional damage to a private citizen. This time, the Fifth Circuit ruled in the favor, of a marginalized citizen and ruled the suit could go forward. This rare progressive ruling was for not, however. The Supreme Court overturned the Fifth Circuit once again.

Clarence Thomas wrote the opinion for the five-four majority, essentially ruling as Mistal summarized the case, quote, that the post office is immune from liability, even when its workers intentionally refuse to do their jobs. Ms. Stahl suggested that this decision carries ominous implications for the upcoming election, should the U.S. Postal Service, for instance, refuse to deliver mail-in ballots? In spite of James Ho's status as an immigrant, his most alarming opinion might be regarding birthright citizenship.

Ratified in 1868, just three years after the end of the Civil War, 14th Amendment to the United States Constitution declares in its opening sentence that, quote, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. For 128 years, Supreme Court has rejected claims that citizenship can be denied to persons born or naturalized here based on their race or the immigration status of their parents. In the 1898 United States v. Wang Kim R. case, the Supreme Court appelled the citizenship of a man born in the United States to Chinese parents. The government tried to block Arc from returning to the United States after he visited China based on the 1882 Chinese exclusion. Act, which barred the Chinese from immigrating here.

The court ruled 62 that arcs birth in the United States established his American citizenship and his right to reside here. James Ho has not always attacked the concept of birthright citizenship, and in fact, he used to defend it, quote, birthright citizenship is a constitutional right, no less for the children of undocumented persons than for the descendants of passengers of the Mayflower, Ho said in a 2007 opinion piece for the Des Moines Register. However, as the political winds shifted strongly against immigrants, particularly in a Trump era, Ho is also tilted in a dramatically different direction.

In a 2024 interview, Ho claimed that the United States was being invaded by the foreign-born and that denying citizenship to the children of the undocumented was necessary to defend national sovereignty. Ho said, 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. The question of birthright citizenship might now be out of the hands of Ho and the rest of the Fifth Circuit. On December 5th, the Supreme Court agreed to hear a case on the constitutionality of Donald Trump's executive order that would deny citizenship to those born in the United States if their parents were in the country temporarily or lacked legal status. Dr. Yu thinks that the Supreme Court is likely to accommodate those restrictions, even as they reject James Howe's more extreme theories. I think the Supreme Court would roll back some portion of the 14th Amendment

protection over people who are born in this country, but I don't think they are going to what Justice Howe is going after, that is the invasion theory. That doesn't mean that James Ho may not one day bring his extreme views on immigration to the nation's highest court. The two most far-right judges on the United States Supreme Court are James Ho's mentor, Clarence Thomas,

who turned 78 on June 23rd, and Samuel Alito, who celebrates his 76th birthday on April 1st. Court watchers are speculating that Alito might step down as early as October, his wife Martha Ann has expressed eager anticipation that the couple might soon be able to openly express their political views as though the Alito's opinions have ever been a mystery. It's still an uphill battle, but the odds of Democrats retaking the Senate after the off-year elections have improved significantly in recent weeks. Alito may want to retire while a Republican-controlled Senate would still be able to rubber-stamp Trump's choice for his successor. Alito also has a book coming out on October 6th, the day after the Supreme Court starts its fall term.

Continuing to serve on the court would interfere with any book promotion tour. Such an opening might lead to James Ho getting a promotion. But Professor Yu said that the fifth court judge shouldn't pack his bags just yet. Trump has largely outsourced the job of picking new federal judges or promoting them to the far-right federal society, and you thinks that Ho might lack the polish that a powerful lobbying group would see. I think, you know, it's not a secret that he's trying to get there, but I honestly think it's not going to be him. He doesn't really fit into the profile of a person who would get there. I think the Fed Sok, you know, the Federalist Society is basically the handler of that situation.

They would be able to, you know, screen name and, you know, make short list to the White House. And so what kind of people they're looking for? I think that they're definitely looking for a conservative, if a little. is going away, right? They are looking for a conservative, but I don't think Justice Hull is in their favor, because I think they are trying to find another person who is more sophisticated than Justice Hull,

if I may say that. They wanted to find a person who is definitely conservative, but being able to rewrap the message with academic legitimacy, and to force a meaningful majority at the court to push through their agenda. Recently, Trump said he was considering Ted Cruz of Texas for the next Supreme Court vacancy. If so, James Ho may be enjoying his lifetime post of the Fifth Circuit for the foreseeable future. Ho celebrated his 53rd birthday on February 27th. That means his legal philosophy will shape gay and trans rights,

the limits of free speech, who can buy firearms, and where and how, how much autonomy women have over their bodies, and what access they will enjoy to health care, and where the boundaries will be drawn between church and state for years to come. Hope may not make it to the Supreme Court, but he could still be the loudest voice on the scariest court in America and shape the future of 40 million Americans in Texas, Louisiana, and Mississippi for decades to come.

We'd like to thank our friend Steve Mason for providing some of the voices today. This is Stephen Mottiali for It Could Happen here. And this is Michael Phillips. Until next time, thanks for listening. It Could Happen Here is a production of Cool Zone Media. For more podcasts from Cool Zone Media, visit our website, coolzonemedia.com, or check us out on the IHeart Radio app, Apple Podcasts, or wherever you listen to podcasts.

You can now find sources for It Could Happen here listed directly in episode descriptions. Thanks for listening. You know, Roald Dahl. He thought up Willie Wonka in the BFG. But did you know he was a specific? spy? In the new podcast, The Secret World of Rolled Doll, I'll tell you that story, and much, much more. What? You probably won't believe it either. Was this before he wrote his stories? It must have been. Okay, I don't think that's true. I'm telling you. The guy was a spy.

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