I am proud to serve on the Board of Advisors of the Journal of Law & Civil Governance at Texas A&M. My article, Bilateral Judicial Reform, was published in the inaugural issue, alongside contributions from Senator Mitch McConnell, Judge Reed O'Connor, and Judge James C. Ho. This past weekend, Judge Ho also delivered remarks at the journal's banquet gala. I am happy to share Judge Ho's speech, which will be published later in the journal.
Fighters, Climbers, and the War for the Judiciary
James C. Ho
We're here to celebrate the launch of a new law journal. But as my law clerks have told me, there are over a thousand law reviews in Westlaw's law review database. Why on earth do we need another?
How you answer that question may depend on how you view the legal academy—and how you think much of the academy views our country and our Constitution.
As Americans, we believe that we should be governed by the people—not by lawyers or law professors. We didn't fight a Revolutionary War to replace one king in royal garb with hundreds of kings in judicial robes.
Our legal system should only decide legal disputes—not political ones. Political disagreements should be resolved through elections—and by officials directly accountable to the people.
In sum, our legal system is supposed to be politically neutral.
But would anyone seriously claim that the median academic or most legal elites are in fact politically neutral—and not systemically, institutionally biased against essentially half the country?
I would submit that therein lies the pitfalls—as well as the potential—for a new law journal.
I.
Three questions come to mind. First: Will this new law journal reinforce the pervasive bias of much of the legal academy—or resist it?
In FAIR v. Rumsfeld, a group of law professors and law schools claimed that they had a constitutional right to expel the United States military from all on-campus recruiting. They didn't just lose—they lost unanimously before the U.S. Supreme Court.
Last year, a group of law professors demanded that states disqualify President Trump from the 2024 ballot. Again, they didn't just lose—they lost unanimously before the U.S. Supreme Court.
So you might conclude that an awful number of law professors aren't very good at law.
But I think the problem is actually worse than that. What concerns me most is not when they lose—but when they win.
Because the way they win is not just by applying the wrong standards. They win by applying double standards.
Just look at how many elites talk about the judiciary today—and compare it to how they talked about the judiciary in 2024 or 2023 or 2022.
It's obvious what's going on, isn't it? They praise and protect judges who do their bidding—and condemn and cancel those who don't.
And they do it for strategic reasons. Because they know that it's just human nature that most people, including judges, desire approval—and fear rejection—particularly from our nation's elites.
So they vigorously defend district judges against criticism—unless those judges live in Texas or Florida.
They strenuously condemn forum shopping—but not if the courts are in Boston or San Francisco.
They strongly oppose the impeachment of judges—except when those judges are named Thomas or Alito.
They're happy to impeach a President for an alleged abuse of power—but horrified if anyone even suggests impeaching a judge for an alleged abuse of power.
II.
And that leads me to my second question. Will this new law journal cater to these double standards—or confront them?
Anyone who believes in the rule of law should be outraged by these double standards. Because you can't defend judicial independence only when it comes to decisions you like. That's not protecting the judiciary—that's politicizing the judiciary.
But it's even worse than that. What kind of message does it send to the American people, that the elites care about judicial independence—but only if they agree with the result?
I think that there are only one of two possibilities—and neither is good. Option one is that they're lying: Judicial independence is in fact not that important to them. Option two is even worse: They're telling the truth. Judicial independence is very important to them. But some people's views are so unacceptable that they are unworthy of protection.
They may think their message is righteous. But to many people, it's sanctimonious.
And it's dividing, if not destroying, our country. Because when they announce that some people hold views that are so abhorrent that they don't belong in polite society, those people will want to return the favor.
So let's be very clear about what's going on here: The double standards aren't inadvertent. They're intentional.
Because they don't want neutrality. They want conformity. If you don't conform, they'll call you corrupt, unethical, racist, sexist. They'll say and do whatever it takes to get you to bend the knee.
And even if you still won't conform, they'll attack you anyway—because they know that others will get the message, and comply.
III.
The double standards don't trouble the elites, because to them, this isn't a debate—it's a war.
And that leads me to my third question: Will this new journal flounder—or will it fight for the rule of law?
I often tell my law clerks that there are two kinds of people in the legal profession: fighters and climbers.
If this is indeed a war, and not a debate, then we don't just need lawyers—we need warriors.
And make no mistake: Unfortunately, this is a war. It's a war for the soul of the judiciary. Are we going to be governed by law—or by the will of the elites?
The correct answer should be obvious. Judges should reject the condescension and the bullying of the elites, and follow the law in every case, no matter whose ox is gored. Judges must ignore the booing of the elites.
If we don't, we will lose the trust of the American people. That will be fatal to the rule of law. And it will be entirely our fault.
Because without the trust of the American people, then the judiciary has nothing.
It's often said that the judiciary is a "co-equal" branch of government. That's actually wrong.
The judiciary is not a co-equal branch of government. We may have an important role. But it's a limited one.
We don't write the laws. We don't execute the laws. We only interpret the law, and apply it to whatever disputes happen to be brought to us.
So we're not an active branch. We're a passive branch.
Moreover, we're the least powerful branch. We have no power to enforce our judgments. We have neither the sword nor the purse. All we have is our voice.
So we need the other branches of government to respect our judgments. That means that we need to earn their respect. We need to demonstrate that our decisions are based on law, not politics—and that we're exercising not force or will, but merely judgment.
As an appellate litigator for over a decade, both in private practice and at the Texas Solicitor General's office, one of the most important parts of my job was to protect my clients when they believed that they had been wronged by a lower court.
In that job, I had plenty of frustrations with appellate judges. But what most stands out in my mind are actually the district courts.
Appellate courts are multi-member bodies. So appellate judges can't do anything on their own. They have to convince their colleagues before they get to exercise judicial power.
But that's not true in the district courts. District court decisions are made by just one judge. District judges are the only members of the judiciary who can exercise the judicial power of the United States without anyone's consent but their own.
With unilateral power, there's unique danger that some district courts may get off track. There's a reason why there are jokes about God wishing that he was a federal district judge.
So it's vital that district judges exercise their powers carefully and with integrity. And it's critical that appellate judges be ready and willing to intervene when district courts refuse to stay in their lane.
* * *
I will close on a hopeful note. I hope that my presence here today illustrates that I expect big things from this new journal. I am hopeful that this journal will resist the bias that you see in the legal academy. That it will confront the double standards practiced by legal elites. And that it will fight for the rule of law—and for the proper but limited role of the judiciary in our constitutional republic.
So to my friends at the Journal of Law & Civil Governance at Texas A&M, I offer my heartfelt congratulations—and my deepest gratitude. We need all of you in this fight. Because we need to win the war for the judiciary. And there is much to do. So let's get started. Thank you.
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