The Texas Supreme Court has a unique structure, reflecting the state’s stubbornly independent-minded culture. Most state supreme courts have jurisdiction over civil and criminal cases and have seven (or fewer) members, who are appointed by the governor and face the voters — if at all — only for periodic “retention” elections. The Texas Supreme Court, in contrast, hears only civil appeals (criminal cases are decided by the co-equal Texas Court of Criminal Appeals) and has nine members, all of whom are subject to statewide partisan elections. The last feature is quite unusual; only seven states select judges in this manner. Despite this distinctive design, the Texas Supreme Court succeeds at steering a steady jurisprudential course in a cautious, low-key style.
The biggest difference between Texas’s supreme court and that of California, its closest competitor in population and economic output, is political; all nine justices on the Texas Supreme Court are center-right Republicans, whereas the seven-member California Supreme Court — long known for its activism — now tilts well to the left. Justices on the Texas Supreme Court serve staggered six-year terms, meaning that at least three of them are on the ballot every other year. The governor appoints replacements to fill vacancies (which occur surprisingly often) arising during the term, and new appointees face the voters in the next election. This degree of accountability to the voters ineluctably grounds the justices.
Former governor Rick Perry, who held that office a record 14 years, placed his indelible stamp on the court. Perry was a resolute advocate of a sensible civil-justice system, and six of his appointees to the supreme court continue to serve, including his former chief of staff and general counsel, Jeff Boyd. Of the current complement of justices, only Boyd, a boyish-looking 55, and Don Willett, a 50-year-old Duke law-school graduate with a flair for colorful prose, lacked prior judicial experience before ascending to the supreme court, although both had experience in private practice.
California provides a stark contrast. California governor Jerry Brown has a penchant for appointing graduates of his alma mater, Yale Law School, to the state supreme court and doesn’t regard prior experience, on the bench or in private practice, as a prerequisite. In 2011, Brown appointed Goodwin Liu, a radical-left 40-year-old Berkeley law professor with scant practice experience, to the California Supreme Court after Liu failed to gain Senate confirmation to the Ninth Circuit Court of Appeals. Liu, deemed too liberal for even the notorious Ninth Circuit, was confirmed to the California Supreme Court with nary a whisper of controversy. Brown subsequently appointed to the supreme court two other young Yale law graduates with primarily academic or government experience, Mariano-Florentino Cuellar, 42, and Leondra Kruger, 38. Neither had ever previously served as a judge, and Kruger had never even practiced law in California. So much for “merit selection,” California’s overrated alternative to judicial elections.
Unlike the exotically — almost ostentatiously — diverse California Supreme Court, led by Filipino-American chief justice Tani Cantil-Sakauye, the staid Texas Supreme Court is currently a microcosm of the state’s practicing lawyers: overwhelmingly white, mostly male, and with deep Texas roots. (Governor Perry’s overall record of appointments was more diverse, including a Hispanic male and two African Americans, one of whom presided for a decade as chief justice, who no longer serve.) Of the nine current justices, none attended Ivy League law schools. In fact, only two justices obtained their law degrees out of state (at Duke and Pepperdine), with the rest attending an assortment of law schools in Texas: Southern Methodist University, St. Mary’s, Texas Tech, the University of Texas, the University of Houston, and the South Texas College of Law. In the Lone Star State, neither identity politics nor a fancy pedigree is considered a substitute for sound judgment and practical experience.
Not surprisingly, given the justices’ backgrounds, the state’s conservative politics, and the lasting influence of former Governor Perry, the Texas Supreme Court oversees a civil-justice system that is regarded as stable and “business friendly,” unlike the plaintiff-oriented courts in California. Some critics have denominated them a “judicial hellhole,” which has been shaped by Governor Brown’s aggressively progressive appointments. Alas, accountability has trade-offs. The existence of partisan judicial elections, controversial in some circles, ensures ideological consistency in a red state such as Texas but also requires judges to raise money and campaign, activities that many black-robed solons find unappealing. This may explain the relatively high turnover on Texas’s supreme court, which is helmed by Chief Justice Nathan Hecht, 67, a silver-maned jurist initially elected to that venue in 1988.
Hecht’s nearly three decades on the court — a record for Texas — far exceed the tenure of any of his colleagues, consisting of six men and two women (one of whom, Eva Guzman, is the court’s first Hispanic woman). A majority of the justices have been on the court for less than a decade, and three have served five years or less. Yet this is not a youthful court. The second-longest-serving justice, Paul Green, 65, was first elected in 2004, following a decade of service on the intermediate court of appeals in San Antonio. At 72, the oldest justice is Phil Johnson, a Panhandle native and Vietnam veteran who previously served on the intermediate court of appeals in Amarillo. Hailing from Fort Worth, family-law specialist Debra Lehrmann, 60, served as a trial-court judge in Tarrant County for 22 years before joining the supreme court in 2010. The scholarly Guzman, 56, can boast that the U.S. Supreme Court once unanimously reversed a Texas Supreme Court decision about legal malpractice in a patent matter, adopting the position she articulated in her dissenting opinion. At 47, Jeff Brown is both the youngest and the junior justice, having previously served on the court of appeals in Houston and the Harris County district court prior to his appointment to the supreme court by Governor Perry in 2013.
In California, justices on the supreme court tend to serve for life and rarely leave for another office. The sole recent exception was Janice Rogers Brown, an outspoken conservative who departed the court in 2005 when President George W. Bush appointed her to the U.S. Court of Appeals for the D.C. Circuit, often considered a way station to the U.S. Supreme Court. Federal district judge Carlos Moreno went in the opposite direction, resigning a life-tenured position on the Central District of California in Los Angeles to join the California Supreme Court in 2001. (He retired in 2011.) Moreno was not the first federal judge to give up a lifetime appointment to sit on the California Supreme Court. Malcolm Lucas made the same move in 1984, retiring in 1996 after serving as chief justice for a decade.
In Texas, however, the supreme court has often been a steppingstone to other positions. Former justices include Texas governor Greg Abbott, U.S. senator John Cornyn, U.S. Representative Lloyd Doggett, former U.S. attorney general Alberto Gonzales, Fifth Circuit Judge Priscilla Owen, and many prominent appellate lawyers now in private practice: Scott Brister, Craig Enoch, Tom Phillips, Wallace Jefferson, Dale Wainwright, Deborah Hankinson, and Harriet O’Neill. Willett, who joined the court in 2005, has reportedly considered running for Texas attorney general (a path previously trod by Cornyn and Abbott), was on President Trump’s Supreme Court short list, and is currently under consideration for an appointment to the Fifth Circuit.
Why is the Texas Supreme Court such a revolving door compared with its California counterpart? For some justices, finances are a consideration. Justices earn a relatively paltry annual salary of $168,000, less than first-year associates make at some large law firms. California Supreme Court justices earn almost 30 percent more — $218,237 per year — but also face a higher cost of living in San Francisco than in Austin. Non-economic perks are generally thought to make serving on a state supreme court attractive despite more-lucrative opportunities elsewhere. Justices boast high status, preside over a palatial courtroom, are attended to by devoted staffs, and receive blandishments and generous retirement benefits few law-firm partners enjoy. A bigger factor in justices’ departures for “greener pastures” may be the difficulty of raising enough money to run a competitive statewide campaign, a burden their California counterparts don’t face.
In a state as large as Texas, with multiple media markets, political consultants estimate that the minimum nut in a contested race is about $1 million. While this doesn’t seem like a lot of money, and in an ordinary political race in Texas (with unrestricted contributions in state elections) wouldn’t pose difficulties for an incumbent, statewide judicial elections in Texas are subject to special limits. The Texas legislature enacted contribution limits for judges in 1995 to address conflicts of interest arising from lawyers and litigants making lavish donations to the judges hearing their cases. As a result, in statewide judicial elections, no corporate or union contributions are permitted, and individual contributions are capped at $5,000. Raising a million dollars in small donations requires lots of telephone solicitations, or fundraisers, or both — tasks that judges, used to fawning obeisance from practicing lawyers, often find demeaning. Simply campaigning across the vastness of Texas, while also juggling judicial duties, can be a grueling ordeal.
Judicial elections sometimes entail an element of caprice, in addition to their expense, which may explain in part why so many justices leave the Texas Supreme Court for other opportunities.
Judicial elections sometimes also entail an element of caprice, in addition to their expense, which may further explain why so many justices leave the Texas Supreme Court for other opportunities. The Texas Supreme Court, although the apex of the state’s legal system (at least in civil cases), is still a “down ballot” office unfamiliar to many voters. Few Texans can identify even a single member of the supreme court, let alone all nine. (The Texas Court of Criminal Appeals is even more obscure.) In the general election, Texas voters can (and typically do) cast a ballot for the “straight ticket,” which heavily favors the Republican nominee in this lopsidedly conservative state. Republican voters regularly outpoll Democrats by more than a million votes in the general election, and in recent decades the Republican nominee for statewide office has always won.
In a contested Republican primary, however, the GOP incumbent loses that partisan advantage and battles his GOP challenger mano a mano. Here, the relative anonymity of supreme-court justices can present hazards for them. Uninformed primary voters tend to prefer candidates with common names, and to disfavor those with unusual names. The results can be quirky.
For example, in 2002, incumbent Justice Xavier Rodriguez, a Harvard-educated jurist with numerous newspaper endorsements, was defeated in the Republican primary by a novice opponent euphoniously named Steven Wayne Smith, even after Rodriguez outspent him 60 to 1. Smith lasted on the court just two years, losing to Paul Green in the 2004 primary, but Smith ran again in 2006, nearly beating recently appointed incumbent Don Willett in a squeaker primary decided by fewer than 5,000 votes. (Willett defeated Smith decisively in a 2012 rematch, spending over $1 million in the process.) In light of such unpredictable results, how many lawyers would resign their partnership at a prestigious law firm (as Rodriguez did) for a position on the state supreme court? (President George W. Bush ultimately appointed the moderate Rodriguez to the federal district court in San Antonio, where he now sits.)
Another election fluke occurred in 2012, when eight-year incumbent Justice David Medina, appointed and endorsed by Governor Perry, was beaten in the Republican primary by a strident pro-life and religious-liberty advocate from Houston, John Devine. Devine was a former Harris County district judge who had previously run, unsuccessfully, for numerous offices, ranging from U.S. Congress to state representative. Devine handled some personal-injury cases while practicing law and sold his practice to the flamboyant and controversial plaintiffs’ lawyer John O’Quinn when Devine became a trial judge in 1995, after winning a campaign that offered voters a “Devine Vision.” Devine reportedly told colleagues that he chose to run against Medina in 2012 because he felt he could “beat someone with a Mexican surname.” Despite such bad publicity, Devine was supported by right-to-life organizations and conservative groups such as Eagle Forum because of his social views.
Perhaps banking on name confusion, in 2016 a scandal-marred former state legislator named Rick Green, with no prior judicial experience and a meager record as a lawyer, came within 85,000 votes (2 million were cast) of defeating respected incumbent Justice Paul Green for the Republican nomination. The race presented bewildered voters with the choice of “Green vs. Green.” Rick Green had previously run for an open seat on the court in 2010, losing in a primary runoff to Debra Lehrmann. During their campaigns, both Devine and Rick Green exploited their extensive involvement in Texas’s Evangelical and social-conservative circles, which hold a great deal of sway among GOP primary voters.
Hispanic surnames are not necessarily a liability in Texas elections. First-time candidate Ted Cruz beat the heavily favored incumbent lieutenant governor, David Dewhurst, to become the GOP nominee for the U.S. Senate in 2012, and in 2016 Cruz handily won the Texas GOP primary for president. In 2016, the popular and hard-working Guzman defeated a serial primary challenger in his third bid for the court, Joe Pool Jr., the son and namesake of a former Democratic congressman who has a lake named after him in Dallas. Guzman went on to win both the primary and the general election by a higher margin than any of her colleagues and in the general election earned more votes, over 4.8 million, than any prior supreme-court justice.
Judicial elections, although imperfect and occasionally fickle, make the justices answerable to the voters in a way that California’s infrequent retention elections (once every twelve years for supreme-court justices) do not. No California Supreme Court justice has lost a retention election in over 30 years, and in the last serious challenge, against Chief Justice Ron George in 1998, George won by a three-to-one margin. The ability to remove bad judges keeps the judiciary in check, and decades ago allowed Texas voters to fix a broken court. Observers sometimes forget that Texas was not always a business-friendly state controlled by Republicans. Like many southern states once part of the Confederacy, Texas was solidly Democratic for over a century after Reconstruction. In the 1980s, when Texas politics still heavily favored Democrats, the plaintiffs’ bar managed to secure control of the Texas Supreme Court by electing a majority of liberal justices, who, predictably, turned the Lone Star State into a haven for trial lawyers.
The ability to remove bad judges keeps the judiciary in check, and decades ago allowed Texas voters to fix a broken court.
According to legal historian James Haley, during the 1980s the court “launched itself in a progressive direction. . . . The liberal justices imposed their weight in such areas as insurance law, warranty protections for home buyers, and a variety of tort cases whose philosophical thread had begun in more conservative times.” Texas’s doctors were inundated with unmeritorious (but expensive-to-defend) medical-malpractice lawsuits. Texas gained an unsavory reputation as the “lawsuit capital of the world.” Things began to spiral out of control.
In 1987, the Texas Supreme Court declined to review the largest jury verdict in legal history (in the Pennzoil v. Texaco case) — over $10 billion — after receiving nearly $300,000 in contributions from the winning plaintiff’s lawyer, Joe Jamail. This unseemly spectacle led to the resignation of the chief justice, John Hill, and prompted 60 Minutes to publicize the blatant influence peddling in an exposé titled “Justice for Sale?” Then, in Lucas v. United States (1988), the Texas Supreme Court struck down a statutory cap on medical-malpractice damages, a move that a blue-ribbon commission had recommended based on a tenuous reading of the state constitution, which vaguely stated in boilerplate fashion that “all courts shall be open.”
Ironically, these disturbing developments in Texas occurred at about the same time that then-conservative-leaning California voters threw liberal Chief Justice Rose Bird and two of her activist colleagues (appointed by Jerry Brown in his prior reign as governor) off the California Supreme Court in 1986 for refusing to follow established law. Given the current political alignment of the two states, it is difficult to believe, but in the late 1980s Texas courts were more plaintiff-oriented than California’s. In the 1990s, things began to change, in both states, but the reversal was faster and more dramatic in Texas. In recent decades, the political pendulum in Texas has swung decidedly in the Republican direction — the opposite of California — and with it the alignment of the supreme court.
Eventually, Republicans gained control of both houses of the Texas legislature and all statewide elected offices, including the Texas Supreme Court and the Texas Court of Criminal Appeals. In fact, the trial lawyers lost control of the Texas Supreme Court in 1992, and no Democrat has won statewide office in Texas since 1994. With the leadership of Texans for Lawsuit Reform, a redoubtable supporter of civil-justice reform, the state’s business community and the beleaguered medical profession gradually restored balance to the state’s courts. But each election cycle, the struggle continues. The plaintiffs’ bar in Texas desperately wants to regain control of the state’s courts. Political challenges to supreme-court justices have moved from the general election in November, when Democrats invariably lose, to the GOP primary in March.
In recent years, incumbent justices have frequently drawn Republican opponents — three incumbents faced primary challenges in both 2014 and 2016 — and sometimes the plaintiffs’ bar recruits and finances the GOP challengers. In 2012, Devine was backed by Democrat mega-donor Lisa Blue Baron, former president of the national trial-lawyer group American Association for Justice (once known as the Association of Trial Lawyers of America) and widow of the toxic tort mogul Fred Baron. (Baron, the finance chair for the 2004 and 2008 presidential campaigns of fellow trial lawyer John Edwards, secretly funneled over $200,000 to Edwards in 2008 to help conceal his illegitimate “love child.”) In 2014, three conservative incumbents, including Chief Justice Hecht, were targeted by Republican challengers supported by some of the state’s leading trial lawyers, such as Vioxx-lawsuit impresario W. Mark Lanier and Houston plaintiffs’ lawyer John Eddie Williams.
In California and most other states, trial lawyers are associated with the Democratic party, but in Texas the savvy plaintiffs’ bar has realized that its best chance of winning judicial elections is to play in the GOP primary. By supporting candidates such as Devine, socially conservative but with trial-lawyer sympathies, the plaintiffs’ bar apparently hopes to regain control of the Texas Supreme Court clandestinely. Trial lawyers realize that circumventing the comprehensive tort-reform legislation that Texas has passed since 1995 — the centerpiece, H.B. 4, was enacted in 2003 — will be necessary to restore the halcyon litigation climate of the 1980s. A curious alliance in Texas between the religious Right and the plaintiffs’ bar makes this bold strategy viable. For example, Lanier, a hugely successful trial lawyer, is also a part-time preacher and a staunch Republican.
Lanier is not the only “cross-dresser” in this unusual masquerade. Steven Hotze, a Houston physician, also heads an influential political organization, Conservative Republicans of Texas, which distributes “pay-to-play” slate mailers to Republican voters in Harris County. Hotze, a conservative firebrand and fierce opponent of the LGBT agenda, has close ties to the plaintiffs’ bar, including the aforementioned O’Quinn and Houston trial lawyer Jared Woodfill. Hotze’s stature in social-conservative circles is such that for many years he used the political consultant Allen Blakemore, who also represents Tea Party–favorite Dan Patrick, the lieutenant governor. The influence of social conservatives in Texas’s GOP primaries is so strong that Patrick inexplicably declined to endorse incumbent Paul Green in 2016 against the unqualified challenger Rick Green, even though Rick Perry, the former governor, did.
In 2018, the three justices appearing on the ballot are Willett (who was the subject of a primary scare in 2006), conservative stalwart Brown (who was challenged unsuccessfully in 2014), and Devine. In 2009, when Brown served on the court of appeals in Houston, he reversed a $253 million jury verdict against the pharmaceutical company Merck in a wrongful-death case involving the now-withdrawn painkilling drug Vioxx. The plaintiff was represented by Mark Lanier. Some court watchers believe that Lanier harbors a grudge against Brown for spoiling his contingent-fee share of a quarter-billion-dollar windfall.
So the Texas Supreme Court increasingly faces pressure from both social conservatives and the plaintiffs’ bar — sometimes simultaneously. In a state dominated by Republican voters, the plaintiffs’ bar’s use of conservative stalking horses and its willingness to exploit divisive social issues such as same-sex marriage can put the decorous justices in an awkward position. Justices must maintain an appearance of impartiality, are forbidden to comment on pending cases, and cannot publicly respond to incendiary claims made by challengers and their surrogates.
All this background aside, how does the Texas Supreme Court perform? Despite the turnover on the court and occasional electoral drama, the court performs remarkably well. Its docket consists primarily of prosaic, albeit important, state-law cases involving torts, contract law, family law, oil and gas, administrative law, statutory interpretation, etc., and occasionally disputes under the state constitution. Difficult and time-consuming death-penalty appeals are handled elsewhere. Most controversies involving federal law are decided in federal court. The Texas Supreme Court exercises discretion over its docket, deciding only those cases it deems to be of statewide importance. On average, the court hears about 10 percent of the 1,200 or so appeals filed with the court, issuing approximately 120 written decisions each year. Unlike the U.S. Supreme Court, Texas’s supreme court is not divided into partisan factions. It is broadly “conservative,” and many of its decisions are unanimous.
In contrast to the California Supreme Court, which through its activist decisions has unleashed a cottage industry of litigation involving wrongful discharge, unfair business practices, insurance bad faith, and wage and hour claims, the Texas justices generally exercise restraint, deferring to the legislature, respecting the discretion of trial courts, and diligently following the court’s own precedents. The supreme court takes seriously limitations on its jurisdiction, strictly enforcing the requirements for “standing,” and hesitating to overturn lower courts absent clear error. Aside from Justice Willett’s affinity for Twitter (explaining his nickname, the “Tweeter Laureate of Texas”), the Texas Supreme Court shuns publicity and assiduously avoids controversy.
These displays of judicial modesty are usually appropriate and typically produce the correct results, but sometimes the court’s restrained approach borders on timidity, even passivity. For example, the court’s respect for precedent — stare decisis — means that it is reluctant to overrule even mistaken decisions issued in the 1980s, during the period that the court was controlled by liberal activists. One such decision is the 1989 Edgewood case, an activist ruling that misconstrued the state constitution to compel “equitable funding” of school districts throughout the state, even though property taxes are levied exclusively at the local level. Edgewood took the issue of school finance away from the legislature, producing a quarter-century of nearly non-stop litigation by school districts claiming that they were shortchanged by the state.
Edgewood has been an unmitigated disaster, resulting in multiple appeals to the Texas Supreme Court and forcing the legislature to cobble together a Rube Goldberg scheme of taxes and revenue transfers in order to comply. Instead of reversing or limiting Edgewood, however, the court — even under the current “conservative” regime — has perpetuated the folly and even made it worse. In the Morath decision (2016), the court unanimously upheld Edgewood, over the objections of Governor Greg Abbott and Attorney General Ken Paxton, who urged the court to defer to the legislature. Willett, in his opinion for the court, demurred, declaring that “adherence to our prior decisions is particularly appropriate in this area of law.”
In contrast to the California Supreme Court’s aggressive and pioneering promotion of same-sex marriage, the Texas Supreme Court has approached the issue warily.
In contrast to the California Supreme Court’s aggressive and pioneering promotion of same-sex marriage, the Texas Supreme Court has approached the issue warily, neither overturning Texas law prohibiting such unions nor making extraordinary efforts to squelch them either. When confronted with a peripheral issue — the ability of Texas courts to grant divorces to same-sex couples married elsewhere — prior to the U.S. Supreme Court’s 2015 decision in Obergefell, the court, after a long delay, properly dismissed the appeal on procedural grounds, never reaching the merits. Some conservative critics erroneously characterized the court’s restrained ruling as an endorsement of “gay divorce,” and this bogus claim became one of Rick Green’s main campaign themes in his primary challenge to Justice Paul Green in 2016 — even though Paul Green did not author the opinion in question. The supreme court has exhibited similar caution post-Obergefell in a case involving same-sex spousal benefits, despite political pressure generated by social conservatives opposed to same-sex marriage. The court’s careful approach to these cases has led to criticism by both proponents and opponents of same-sex marriage, but that is arguably a sign that the justices are acting judiciously.
Nationwide, state supreme-court justices have not always viewed themselves, or been regarded by others, as “celebrities.” For decades, state appellate courts were nondescript government functions valued solely for their efficiency and accuracy. That changed during the 1960s and ’70s. Due to the enormous influence of Roger Traynor, who served on the California Supreme Court for 30 years, culminating with his term as chief justice from 1964 to 1970, that court came to be viewed as the nation’s most respected and influential state court — nearly as “glamorous” as the U.S. Supreme Court. Its innovative opinions were studied in law schools from coast to coast. The associated prestige may explain why justices on the California Supreme Court tend to serve for life.
Unfortunately, in the ensuing decades the California high court has largely squandered Traynor’s storied legacy, allowing the court’s once-revered jurisprudence to degenerate — especially under Rose Bird — into brazen activism, and now into naked politics. In inflammatory pronouncements more appropriate for the governor of a “sanctuary state,” the current California chief justice, Cantil-Sakauye, has publicly suggested that the rule of law is “challenged” by the federal government’s enforcement of immigration law under President Trump, and she has requested that Immigration and Customs Enforcement officials refrain from arresting illegal aliens in the state’s courthouses.
Seeking to duplicate Traynor’s eminence, subsequent generations of state-court jurists, in California and elsewhere, have often mistaken liberal dogma for wisdom, grandiose rhetoric for reasoned argument, and the approbation of pundits for sound decision-making. In an influential 1977 article in the Harvard Law Review, U.S. Supreme Court justice William Brennan appealed to the vanity of state-court judges, urging them to continue the activism of the eclipsed Warren Court by expansively interpreting state constitutions. Many jurists have accepted Brennan’s invitation, writing their opinions with an ideological bent, and for an external audience, not just for the parties to the case. The Texas Supreme Court has been largely immune from this unfortunate trend, but not always.
In Patel v. Texas Department of Licensing and Regulation (2015), the court unnecessarily turned a pedestrian challenge to a state occupational-licensure statute into a contretemps under the state constitution, attracting national attention. In Patel, a law requiring 750 hours of training to perform “eyebrow threading” (a form of hair removal, similar to eyebrow plucking), a popular cosmetic treatment in South Asian and Middle Eastern communities, was challenged as excessive and unreasonable. Texas requires eyebrow threaders to hold a cosmetology license. The state conceded that 320 of the curriculum hours required to be a licensed cosmetologist are wholly unrelated to activities threaders perform. In fact, only 25 hours of the required training are devoted to hair removal, and none to threading. By comparison, only 140 hours of training are required to become a licensed emergency medical technician, or paramedic. In other words, the regulation of eyebrow threading was a classic case of government overkill, probably designed to limit competition against existing licensees.
The court could have declared the law to be invalid under a rigorous application of the prevailing “rational basis” test, as suggested by Justice Boyd. Instead, five justices resorted to a novel interpretation of the state’s 1876 constitution, “discovering” a heretofore unknown “right” to be free from economic regulation “so unreasonably burdensome that it becomes oppressive in relation to the underlying governmental interest.” Patel generated a torrent of internal dissension. Three justices, led by Hecht, vociferously dissented, and the badly splintered court issued five separate opinions, including a 52-page concurring opinion by Justice Willett (who also joined in the 36-page majority opinion). Boyd’s sensible concurrence, plowing no new constitutional ground, was the shortest opinion, clocking in at a mere five pages.
Many libertarian pundits lauded the holding in Patel (and in particular Willett’s florid concurring opinion), even though it was not a plausible originalist interpretation of the state constitution. The majority apparently succumbed to the siren song of attention and flattery, at the expense of doctrinal fidelity. The temptation to play to external audiences is sometimes strong, but should always be resisted.
These anecdotes are intended to illustrate occasional, and relatively minor, lapses from an otherwise sound and principled court. Texas is a large and consequential state — home to 28 million people and the nation’s second-biggest economy. The Texas Supreme Court serves the state’s residents well, deciding cases in a sober and judicious manner, rarely displaying the activist tendencies afflicting many other courts. Texas arguably has the best functioning supreme court of any major state. Its decisions are predictable, reasonable, and solidly based on the law. The biggest challenge facing the judges as elected officials will be to maintain the court’s centrist course despite political cross-currents from various directions in a state that is growing ever more populous, urban, and diverse.
The legislature should adjust the justices’ compensation to be commensurate with the importance of their duties and to remain competitive with the legal marketplace, to which so many justices defect. Moreover, the legislature should relax the relevant spending and contribution limits, which have not been revised since 1995, to eliminate unreasonable constraints on fundraising and campaigning. The significant disadvantage that judicial candidates face vis-à-vis other elected officials could be reduced without returning to the abuses of the 1980s.
When, inevitably, current justices depart from the court, Governor Abbott, himself a former justice, will have the opportunity to influence the court’s direction by appointing their replacements. This will be one of the governor’s most momentous responsibilities. Judicial philosophy, temperament, and background are highly personal qualities, proving that, even on the bench, “personnel is policy.” One hopes that Abbott will continue the tradition of appointing experienced, respected judges with a proven record as dedicated originalists committed to the rule of law. Texas has a deep judicial bench from which to draw. In this and other areas, California provides abundant examples of mistakes to avoid.