CA5 today upheld a lower court decision invalidating Mississippi's new abortion law, but in my view the story is a ferocious Concurrence in Name Only (CINO?) from Judge Ho.
ca5.uscourts.gov/opinions/pub/1…
ca5.uscourts.gov/opinions/pub/1…
Judge Ho says that the district court disrespected pro-life people in how it handled the case. /2
This sort of section is quite unusual - circuit judges do not usually critique the views of the district judge at this sort of length except in quite unusual circumstances. Clearly, Judge Ho believes this is one of those, but I've not seen this sort of thing before very often /3
Here he picks up Justice Thomas's recent dissent about the links Thomas (and Ho) see between abortion and eugenics. /4
Ho concludes by assailing the district court a last time as deciding the case based on his policy preferences (although he's really talking about the rhetoric, since everyone agrees the district judge was right) /5
Trying to abstract myself from this particular issue, I'm not sure what I'd make of this kind of admonishment if I were a district judge. A problem I will not have, to be sure, but interesting.
I've been asked whether this sort of thing might go en banc in CA5. Although this is a very favorable panel for the challengers, I don't see the point of en banc review. Everyone agrees the argument is foreclosed and only SCOTUS could change it.
I suppose *more* judges could /5
I suppose *more* judges could /5
admonish the district judge, but I don't think the Fifth Circuit would use its scarce en banc resources for that exercise.
One more observation - I notice (I think, unless I've missed it) that the majority per Judge Higginbotham does not say anything about the concurrence. One can easily imagine a very different opinion where they go at it.
