Bench Memos

NRO’s home for judicial news and analysis.

Owen and Gonzales


In a parental-notification case in Texas in 2000, Alberto Gonzales, then a Texas Supreme Court justice, wrote that to construe the law’s provision for a judicial bypass narrowly would be “an unconscionable act of judicial activism.” Since Priscilla Owen was on the other side of the case, Democrats have used those words against her. Various conservatives–notably Orrin Hatch, Terry Eastland, and the folks at PowerLine and NRO (including me)–have disputed this account. So has Alberto Gonzales.

There are three theories about Gonzales’s words. 1) He was attacking Owen and the other dissenters. 2) He was attacking one or two of the dissenters but not Owen. 3) He wasn’t attacking anybody.

Eastland’s argument for 2) was that Gonzales was concerned about a narrow construction of the judicial-bypass provision, which was the major focus of Justice Hecht’s dissent but not of Justice Owen’s. Owen, he said, dissented mainly because of how the court had treated lower courts.

People for the American Way and Eric Boehlert of Salon argue in response for 1) because Gonzales refers to dissenting “opinions” at the start of the paragraph with the “unconscionable” line in it and because Owen did, indeed, try to construe the statute narrowly.

You could even make a case for 3)–the words of the passage don’t quite add up to an indictment of anybody without some additional interpretation of the context. Here’s the Gonzales paragraph: “The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction. As the Court demonstrates, the Legislature certainly could have written section 33.033(i) to make it harder to bypass a parent’s right to be involved in decisions affecting their daughters. See ___ S.W.3d at ___. But it did not. Likewise, parts of the statute’s legislative history directly contradict the suggestion that the Legislature intended bypasses to be very rare. See id. at ___ (detailing legislative history). Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism.” (The paragraph continues, but that’s the end of the relevant section.)

You could interpret this passage a number of ways. Gonzales could, for example, be saying: Some justices want to read this bypass narrowly. But I’ve looked more closely at the legislative history than they have. For me to ignore what I know (but they apparently don’t) would be an act of unconscionable judicial activism.

Personally, I don’t buy 3). I buy 2). Gonzales refers specifically to Hecht’s dissent twice and refers specifically to Owen’s never. It’s Hecht who got to him, and who he was implicitly slamming.

I also don’t take Gonzales to be the last word in statutory interpretation or judicial decisionmaking–but for what it’s worth, I think the conservatives have the better of the argument here.

Gonzales’s decision can be found here.


(Simply insert your e-mail and hit “Sign Up.”)

Subscribe to National Review