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As a collective, we messed up the day we decided to treat judges like celebrities. Whether its Clarence Thomas’s RV hijinks and long-standing PR campaign or Stuart Kyle Duncan’s hissy fit after Stanford students had the nerve to ask him questions, judges — usually of the Republican variety — are jumping at any chance to differentiate themselves. And nothing says differentiating like being the lone dissenter on a 16-person panel. Enter Judge Ho. From Reuters:
U.S. Circuit Judge James Ho, an appointee of former Republican President Donald Trump, dissented Monday from the 5th U.S. Circuit Court of Appeals’ 15-1 decision to not revisit a three-judge panel’s July ruling in the University of North Texas’ favor.
…
[H]e said Texas was “treating U.S. citizens less favorably than illegal aliens when it comes to postsecondary education benefits” under a policy that he suggested undercut federal border control.
“Our national objectives are undercut when states encourage illegal entry into the United States,” Ho wrote.
It’s a cute dissent, really. Judges tend to keep their judicial opinions to tired things like statutes, Supreme Court precedent, and the Constitution, but when you’re grabbing for attention, the much more nebulous appeal to “national objectives” really gets the people going.
Truth is, this is a decision better left to someone who’s not on the bench. The underlying case is a dispute over how much UNT charges its in-state vs its out-of-state students, and if it is fair for students who live in Texas but lack American citizenship to pay the in-state rate. I’m not trying to wave away the huge gulf between what in-state and out-of-state students pay; residents pay $50 per semester credit hour while out-of-towners pay $458 for the same. Is that fair? Maybe not — but schools nationwide have the authority to determine their tuition schemas in light of operation cost, prestige, and whatever else goes into determining how much students have to pay for the right to get a pretty piece of paper after using Khan Academy to answer their professors’ questions.
This is ultimately a policy question — not a judicial one — and Ho would be better off minding his business. Want his opinion to be relevant? Run for office. In the meantime, he should stick to the roles that judges are actually supposed to be filling. What? The bickering about Yale student’s free speech well gone dry?
Trump-Appointed Judge Says Texas Tuition Law Encourages Illegal Immigration [Reuters]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.
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