Judge James Ho of the 5th Circuit Court of Appeals has recently discussed concerns regarding the concept of judicial supremacy, arguing that some federal judges have become arrogant and have strayed from their limited roles in government. In an article for the Harvard Journal of Law & Public Policy, Ho highlights the shift in judicial attitudes, particularly in response to political pressures.
• Judicial Supremacy Critique: Ho criticizes the belief that the judiciary is the ultimate authority in law and policy, placing it above the executive and legislative branches.
• Silence on Bias: He points out that many federal judges who now vocalize concerns about judicial independence remained silent when left-wing criticisms emerged, suggesting a strategic approach rather than a principled one.
• Role of Judges: Ho emphasizes that judges should not make laws; their primary duty is to apply the law impartially. He notes that the judiciary is the "least powerful branch" and must earn respect by acting within its constitutional limits.
• Cultural Elite Hypocrisy: He argues that "cultural elites" apply double standards regarding judicial independence, supporting judges that align with their views while condemning those who do not. This creates an environment where judges are pressured to conform rather than interpret the law impartially.
• Implications for Trust: A departure from impartiality in judicial decisions could undermine public trust, which Ho deems essential for upholding the rule of law.
• Challenges to Originalism: He identifies threats to the originalist approach—an interpretation of the Constitution as it was originally written—such as insubordination in district courts and selective adherence to originalist principles based on the reactions of elites.
• Optimism for the Future: Ho concludes his article with a hopeful outlook for the judiciary, advocating for judges to remain committed to the Constitution's original meanings and reaffirming the proper role of the judiciary in American society.
Judge Ho’s commentary raises significant points about the limits of judicial power and the importance of impartiality in maintaining public trust. He calls for judges to adhere to the law without being influenced by political pressures or the expectations of cultural elites, reinforcing the foundational belief that “We the people” should govern themselves, not a small group of judges.
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