Judge James Ho’s concurring opinion in the 5th Circuit’s handling of the A.A.R.P. v. Trump case doesn’t just raise eyebrows—it raises the roof. In just seven pages, Ho not only critiques the Supreme Court’s recent instructions but does so with a wit, candor, and indignation rare in judicial writing. What makes it even more remarkable is the gravity of the underlying case: removal proceedings of members of Tren de Aragua (TdA)—a violent, transnational criminal organization—under the Alien Enemies Act (AEA).
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
This all began when detainees affiliated with TdA sought emergency relief to halt their removal. The Supreme Court vacated the 5th Circuit’s dismissal and sent the case back for a deeper dive into due process violations—particularly the adequacy of the 24-hour removal notice. Without offering specifics, the Court ruled that such notice “surely does not pass muster” and directed the Circuit to handle the matter expeditiously.
Judge Ho, concurring with the 5th Circuit’s decision to expedite the review, took the opportunity to torch the Supreme Court’s reasoning. With ironic restraint and biting humor, Ho dismantled the timeline the high court retroactively imposed on the district judge, Judge Wes Hendrix—suggesting that Hendrix was expected to act as if running a midnight shift at Denny’s.
Ho’s Key Arguments
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“We seem to have forgotten that this is a district court—not a Denny’s.”
This line alone ensures this concurrence a place in future legal anthologies. Ho’s point: expecting a judge to respond to emergency filings at 12:34 a.m. without prior indication of urgency is judicial absurdity, not a standard. -
The 42-minute window vs. 14 hours, 28 minutes
The Supreme Court claimed the district judge had nearly 15 hours to act. But Ho rightly notes that the clock only started ticking when petitioners first demanded action—which wasn’t until 12:48 p.m., giving Judge Hendrix less than an hour before the detainees threatened to appeal. -
“If this is going to become the norm…”
Ho provocatively floats the idea that if judges are now to be on call 24/7, the Judicial Conference and Congress should act accordingly. Otherwise, this special treatment for certain litigants is a naked exercise in judicial bias, not neutral justice. -
Contrasting urgency with past cases
Referencing Does 1–3 v. Mills, where the Court declined to act on religious liberty cases due to “short timelines” of nine days, Ho points out the staggering inconsistency: nine days was too short for law-abiding citizens—but 42 minutes is sufficient for criminal alien detainees?
Judge Ho’s blistering concurrence isn’t merely a protest of procedural timelines—it’s an indictment of the growing perception of two-tiered justice. By drawing attention to the disparity in treatment between politically-favored litigants and average Americans, Ho implicitly challenges the Supreme Court’s own posture of impartiality.
The opinion doesn’t just make legal arguments—it tells a story about a judiciary under pressure, bending its own norms for certain causes while ignoring others. It paints a picture of executive agencies tied in knots by unclear directives, district judges working in good faith but being publicly second-guessed, and a legal culture increasingly captive to optics and political favor.
