I've read probably thousands of court opinions in my time on this planet — some dry, some hyper-technical, some befuddling, and yes, some entertaining. But I'm not sure I've ever hooted out loud while reading one before. I did just now. And so, dear readers, I couldn't wait to share it with you. 

Now, the context is serious in nature. This is the continuation of the removal of Tren de Aragua (TdA) members pursuant to the Alien Enemies Act (AEA) saga. When last we left you, the Supreme Court had offered up another head-scratcher via its opinion, handed down on Friday, in the A.A.R.P. v. Trump case. As explained in my reporting on that case on Friday:

In an eight-page per curiam order issued Friday afternoon, the high court vacated the 5th Circuit's decision (dismissing the appeal of petitioner-detainees) and sent the case back to the 5th Circuit for further review of their appeal. 

In doing so, the court reiterated that detainees subject to removal under the Alien Enemies Act (AEA) are entitled to proper notice and, without specifying what that notice should be, affirmed that "notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster."

READ MORE: Breaking: Supreme Court Again Blocks Trump Admin From Deporting TdA Members Without 'Proper' Notice

Justice Alito wrote the dissent in that one, and I think he has the far better argument. It's safe to say that at least one 5th Circuit judge — James Ho — shares that view. 

As noted, the Supreme Court told the 5th Circuit it got it wrong in dismissing the petitioner-detainees' appeal and sent the case back to them to sort through the due process argument and determine exactly what notice north of 24 hours these detainees are entitled to before being removed from the country under the AEA. 

The 5th Circuit, seemingly a bit taken aback by SCOTUS' determination, noted that it had told them to get to work and make it snappy. (Okay, the Supremes directed the 5th to proceed "expeditiously.") Therefore, the Circuit, in a per curiam order, expedited the matter "to the next available randomly designated regular oral argument panel."

But Judge Ho felt compelled to author a concurring opinion sharing his thoughts on how the Supreme Court has handled the situation (and, in his view, disparaged District Court Judge Wes Hendrix and the executive branch in the process). I'm going to share some of the tastier nuggets here, but before I do, I can't stress enough how worth it those who find this topic remotely interesting will find it to read the whole opinion for themselves. It's only seven pages — treat yourself. 

And speaking of tasty nuggets, discussing the Supreme Court's Friday ruling with a friend and former colleague, I casually observed, "I hope the 5th gives them something really tasty to chew on." They've obliged here. 

Me to a friend/former co-worker re: SCOTUS decision last Friday: "I hope the 5th gives them something really tasty to chew on."

5th Circuit: Here ya go!

"We seem to have forgotten that this is a district court—not a Denny’s."https://t.co/8qwi7P314f

— Susie Moore ⚾️🌻🐶 (@SmoosieQ) May 21, 2025

First, Ho sets things up, explaining his reasoning for writing the concurring opinion:

As an inferior court, we’re duty-bound to follow Supreme Court rulings—whether we agree with them or not. We don’t have to like it. But we have to do it. So I concur in our order today expediting our consideration of this matter, as directed by the Supreme Court.

But I write to state my sincere concerns about how the district judge as well as the President and other officials have been treated in this case. I worry that the disrespect they have been shown will not inspire continued respect for the judiciary, without which we cannot long function. See, e.g., In re Westcott, 135 F.4th 243, 250–51 (5th Cir. 2025) (Ho, J., concurring).

Ho lays out the procedural timetable:

So when they sought emergency relief at 12:34 a.m. on April 18, Petitioners “were fully aware that the District Court intended to give the Government 24 hours to file a response.” A.A.R.P., 605 U.S. at _ (Alito, J., dissenting). They “said nothing about a plan to appeal if the District Court elected to wait for that response.” Id.

At 12:48 p.m. on April 18, however, Petitioners “suddenly informed the court that they would file an appeal if the District Court did not act within 42 minutes, i.e., by 1:30 p.m.” Id. 

To emphasize the problem with such a tight turnaround time, Ho points to the Supreme Court's own rationale in a recent case, highlighting the contrast between citizens asserting religious liberty and alien gang members to drive home the point: 

Notably, the Justices themselves have expressed concerns about making decisions under far more forgiving time constraints than those demanded here. Recall the emergency relief sought in Does 1-3 v. Mills, 142 S. Ct. 17 (2021). Members of the Court expressed concern about the “use [of] the emergency docket to force the Court” to “grant . . . extraordinary relief” “on a short fuse without benefit of full briefing.” Id. at 18 (Barrett, J., concurring in the denial of application for injunctive relief).

The amount of time considered too short in Does 1-3 was nine days. Compared to 42 minutes, however, nine days is a lifetime to decide a motion.

So the district court reasonably assumed that the principle invoked in Does 1-3 to justify denying relief to law-abiding citizens concerned about their religious liberties in the COVID-19 era would likewise justify denying relief to illegal alien members of a foreign terrorist organization.

Then Ho gets to the meat of it all — the disparity between the 42 minutes noted by Judge Hendrix and the 5th Circuit, and the 14 hours and 28 minutes the Supreme Court suddenly determined Judge Hendrix had to act (emphasis mine):

This charge is worth exploring. To get to 14 hours and 28 minutes (rather than 42 minutes), the Court was obviously starting the clock at 12:34 a.m., rather than 12:48 p.m. (when Petitioners told the district court for the first time that they wanted a ruling before the Government could respond).

But starting the clock at 12:34 a.m. not only ignores the court’s express instructions respecting the Government’s right to respond. It also ignores the fact that the Court is starting the clock at—12:34 a.m.

We seem to have forgotten that this is a district court—not a Denny’s. This is the first time I’ve ever heard anyone suggest that district judges have a duty to check their dockets at all hours of the night, just in case a party decides to file a motion.

And then he adds the cherry on top: 

If this is going to become the norm, then we should say so: District judges are hereby expected to be available 24 hours a day—and the Judicial Conference of the United States and the Administrative Office of the U.S.Courts should secure from Congress the resources and staffing necessary to ensure 24-hour operations in every district court across the country.

If this is not to become the norm, then we should admit that this is special treatment being afforded to certain favored litigants like members of Tren de Aragua—and we should stop pretending that Lady Justice is blindfolded.

I'm going to stop before I just wind up sharing the whole opinion. It's not yet clear when "the next available randomly designated regular oral argument panel" before the 5th Circuit will be, though I expect we'll find out soon enough. 

One hopes that when the Circuit finishes addressing the matters the Supreme Court tasked it with, it will deliver a thoroughly delicious record and opinion for the High Court to gnaw on. 

Editor's Note: Partisan federal judges are hijacking President Trump's agenda and insulting the will of the people

Help us expose out-of-control judges dead set on halting President Trump's mandate for change. Join RedState VIP and use promo code FIGHT to get 60% off your membership.