Donald Trump Isn’t Done Transforming the Supreme Court

This article first appeared in The Progressive.

Donald Trump’s greatest presidential achievement was remaking the U.S. Supreme Court. By appointing three young and doctrinaire judicial “originalists” to the bench—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—Trump ensured that the Court would be dominated by a six-three conservative supermajority for years to come. 

The right’s capture of the high court is the result of a longstanding crusade that some commentators date to a confidential 1971 memo authored by the late Justice Lewis F. Powell Jr., entitled “Attack on American Free Enterprise System.” Drafted on behalf of the Chamber of Commerce while Powell was a well-connected partner in a blue-chip law firm in Richmond, Virginia, the memo urged corporations to “recruit” lawyers of “the greatest skill” to represent their interests before the Supreme Court, which had moved steadily leftward under the stewardship of Chief Justice Earl Warren.  

The memo was breathtaking in its scope and ambition. In it, Powell argued that “Under our constitutional system . . . the judiciary may be the most important instrument for social, economic, and political change.” It was imperative, in Powell’s view, for the Supreme Court to change course. As writer Steven Higgs noted in a 2012 article published by CounterPunch, the memo was “A Call to Arms for Class War: From the Top Down.”

It was only a matter of time until the Heritage Foundation, founded in 1973, and The Federalist Society, formed in 1982, heeded the call and began to compile lists of acceptable conservative candidates for appointment to the Supreme Court. Both groups were especially active in proposing candidate rosters for Trump, a process that culminated in him choosing Gorsuch, Kavanaugh, and Barrett.

But if you think that Trump is finished remaking the Supreme Court, think again. Supreme Court justices are human, and while they serve for an average of twenty-six long years, they are mortal, just like the rest of us. 

Of all the court’s current members, Clarence Thomas is the oldest and the most likely to step down. Nominated by George H.W. Bush in 1991, Thomas will turn seventy-six in June. And he may not be in tip-top medical condition, having been hospitalized for a week with an undisclosed infection in 2022. Thomas isn’t the type to retire early, but if Trump is reelected and is able to nominate his successor, he may just decide the time is right to ride off down Interstate 80 with his wife Ginni in the luxury RV he purchased with a since-forgiven loan from one of his many uber-wealthy benefactors. 

If Thomas decides to leave, a worthy successor is waiting in the wings—Fifth Circuit Court of Appeals Judge James Ho, who may just be the most reactionary federal appellate judge in the country. In the words of Vox senior legal correspondent Ian Millhiser, “If you could breathe life into 4chan, the dark corner of the Internet where shitposters, edgelords, Groypers, and trolls of all kinds thrive, and then appoint this new lifeform to the federal bench, you would have created Judge James Ho.”

Just fifty-one years old, a youngster by Supreme Court standards, Ho was born in Taiwan and immigrated to the United States as a child. He grew up in San Marino, California, an upscale suburban community east of Los Angeles. He received his B.A. from Stanford and his law degree from the University of Chicago. 

As an attorney, he logged short stints with the U.S. Department of Justice and served as chief counsel to the Senate Judiciary Committee before clerking for Thomas at the Supreme Court from 2005 to 2006. In 2008, Texas Governor Greg Abbott nominated him to replace Ted Cruz as that state’s Solicitor General. Ho held the position until 2010.

In 2017, Trump named Ho to the Fifth Circuit, widely regarded as the country’s most conservative appellate court. He was confirmed by the Senate and was sworn in by Thomas himself in a closed ceremony in 2018 at the Texas mansion of billionaire Republican donor Harlan Crow. 

Since then, Ho has carved out a reputation as an unflagging extremist. In a lecture last year at a Heritage Foundation conference in Washington, D.C., he encouraged his judicial colleagues to avoid “fair-weather originalism,” and to steel themselves from the “harsh criticism” they could expect from “elites” displeased by their interpretation of the Constitution’s original meaning. “If you’re an originalist only when elites won’t be upset with you, if you’re an originalist only when it’s easy,” he said, “that’s not principled judging.” 

In his first opinion on the bench, a 2018 dissent, he argued that all laws limiting donations to political candidates and campaigns violate the First Amendment. In 2019, he wrote a concurring opinion validating Mississippi’s restrictive abortion law in Dobbs v. Jackson Women’s Health Organization, which subsequently went to the Supreme Court and resulted in the reversal of Roe v. Wade. 

A Second Amendment absolutist, he penned another concurrence last year, upholding the right of individuals subject to domestic-violence restraining orders to own guns. The case, United States v. Rahimi, was argued in November 2023 and is currently before the Supreme Court.

Ho was also part of a three-judge Fifth Circuit panel last August that curtailed the use of the abortion pill mifepristone. The case, Danco Laboratories v. Alliance for Hippocratic Medicine, will be argued before the Supreme Court on March 24, and will have dramatic effects on the rights of women and pregnant people to reproductive freedom.

Outside of court, Ho has been an equally unflagging activist, writing law review articles and lecturing at law schools about the evils of “cancel culture.”  

In 1993, Clarence Thomas told two of his law clerks that he planned to do his utmost to make the lives of liberals “miserable.” No doubt he has succeeded, perhaps beyond his wildest expectations. In any event, if Trump is reelected, Thomas will be able to rest assured that his legacy will live on with the appointment of James Ho, whom Trump named to his last Supreme Court shortlist in 2020, and, from all appearances, is auditioning to have his name called if the opportunity arises.