A Black Robe Is No Guarantee of Gray Matter

A nice line from Fifth Circuit Judge James Ho in his dissent from denial of rehearing en banc Thursday in Lopez v. Ramirez:

I’m grateful to Judge Smith [who wrote the principal dissent from denial of rehearing] for flagging this case for our attention, and share his dismay that the court is denying rehearing en banc. The mediation order should have been sufficient to establish appellate jurisdiction over this interlocutory appeal from the denial of qualified immunity….

A final point: In footnote 6 of his dissent, Judge Smith notes that the [panel opinion, which he is arguing should be reheard -EV] found support in our court’s “equally errant” unpublished decision in De Leon v. Munoz, 2025 WL 957500 (5th Cir.).

I joined that unpublished decision. That decision, to be clear, found appellate jurisdiction in De Leon—the same result that both Judge Smith and I urge here. That said, footnote 2 of the per curiam decision separately suggests that there was no appellate jurisdiction at an earlier stage in the case.

If footnote 2 was wrong, so be it. It’s unfortunate when errors arise in our decisions—whether in express holdings in precedential decisions, or footnote asides in unpublished per curiam rulings. But errors happen. Because judges are human—and humans make mistakes. A black robe is no guarantee of gray matter. I am happy to admit error.

As judges, we should strive to be open about our mistakes, and look for opportunities to correct them. Any judge who claims that he or she has never made a mistake is a judge I wouldn’t trust.

There’s no shame in admitting error. There’s only shame in not admitting error….