Trump appointee judge’s drag show dissent signals Supreme Court ambitions

Federal Judge James Ho, a Trump appointee, issued a provocative dissent last week criticizing “cultural elites” and linking drag performances to transgender athletics, fueling speculation about his Supreme Court prospects.

Case in point: A divided 5th Circuit Court of Appeals panel ruled 2-1 on Aug. 18 that West Texas A&M University cannot bar LGBTQ student group Spectrum WT from hosting charity drag shows on campus. The majority, written by George W. Bush appointee Leslie Southwick and joined by Clinton appointee James Dennis, reversed Trump-appointed District Judge Matthew Kacsmaryk’s decision that upheld the university’s ban.

Kacsmaryk, a former Christian legal activist, had concluded that drag performances can involve “sexualized conduct” that may be regulated to protect children from “lewdness.” University President Walter Wendler canceled Spectrum WT’s March 2023 drag show planned to raise money for the Trevor Project, a suicide prevention nonprofit, after declaring such performances were “misogynistic” and comparable to “blackface.”

About Ho: Ho immigrated from Taiwan as a baby and became a U.S. citizen at age 9, building a career that combines traditional conservative credentials with Trump-aligned judicial positions. His background includes degrees from Stanford and University of Chicago Law School, a clerkship with Justice Clarence Thomas, legal work on George W. Bush’s 2000 election challenge and service as Texas solicitor general under then-state Atty. Gen. Greg Abbott.

Trump appointed him to the 5th Circuit in 2017, later placing him on a Supreme Court shortlist to replace Justice Ruth Bader Ginsburg, supported by endorsements from Texas Republicans, the Federalist Society and conservative advocacy organizations. During the Biden administration, Ho led a boycott among Trump-appointed judges against hiring Yale Law School clerks over alleged “cancel culture” and has consistently taken positions supporting Trump’s agenda, leading to him being frequently mentioned as a top contender for the president’s Supreme Court shortlist.

What he said: Ho’s dissent strategically invoked the 2010 Supreme Court case Christian Legal Society v. Martinez, which denied recognition to a student group that excluded gay members, arguing it should govern this dispute. He stated he would not apply “a different legal standard in this case, just because drag shows enjoy greater favor among cultural elites than the religious activities at issue in CLS.”

The judge also connected drag performances to transgender participation in women’s athletics, contending that permitting “men to act as women in campus events like drag shows” might compel universities to allow similar participation “in other campus events as well — like women’s sports.” He defended the university’s position by arguing officials correctly concluded “that drag shows are sexist, for the same reason that blackface performances are racist.”

The case now returns to district court.