A tremendous amount of attention is now on the U.S. Supreme Court and the confirmation process for Amy Coney Barrett.
Meanwhile, starting with early voting on Oct. 13, voters in Texas will be able to make important judicial choices of their own, including who will sit on the Texas Supreme Court. It’s the highest state court for all civil cases.
Four seats will be on the ballot, including chief justice.
Why The Court Matters
The power of the body has been felt more keenly during the pandemic, with rulings on mail-in voting, evictions, and emergency powers.
“They’re the ones who decide the rules with respect to divorces and family laws, looking at what the family code means, looking at the Texas Constitution,” said Charles “Rocky” Rhodes of South Texas College of Law in Houston. “They impact a lot of our daily lives.”
And even when it doesn’t make a ruling, the court has an impact.
Justices, for example, decided not to hear a case concerning Austin’s 2018 law requiring companies to let workers accrue paid sick time. (A lower court had struck down the mandate.) The Texas Supreme Court didn’t explain its decision, but the move effectively killed Austin’s law.
“That’s the type of thing that can go up to the Texas Supreme Court,” said Mimi Marziani, president of the Texas Civil Rights Project. She expects the issue of municipal sick leave laws will eventually be heard at the Texas Supreme Court.
“[The court] would affect the ability of hundreds of thousands of Texans, particularly working Texans, to have access to sick leave,” she said.
Marziani also said the Texas Supreme Court can potentially serve as a check on other branches of state government, like the state Legislature.
“Especially when it affects individual rights, are they going to require some sort of justification from the Legislature?” she said.
2020 Elections
If you want to know how judicial candidates will rule in specific cases, too bad. Judicial ethics rules prevent them from saying so, and public comments on a case can be used by attorneys to argue a certain judge should be removed.
Judicial campaigns, consequently, often revolve around experience, party affiliation and a more general judicial “approach.” The League of Women Voters has a nonpartisan voter’s guide on their Texas website.
For the past two decades, all Texas Supreme Court members have been Republicans.
Two Candidates
Current Justice Jeffrey Boyd said party affiliation shouldn’t affect how a justice rules.
“Ideally, if you elect good judges, it’s not going to matter what their own political or policy views are because judges are trained and required under our system to set those views aside,” Boyd said.
Boyd has been on the court for almost eight years. Before his appointment by former Gov. Rick Perry, he was Perry's chief of staff and before that, his general counsel. Boyd has also worked in the private sector and in the attorney general’s office.
He won his first statewide election for Texas Supreme Court in 2014 and is up for re-election this year.
Boyd’s view is that judges should have a limited role, directly apply the law as written and avoid using a law’s supposed purpose as a guide in interpretation.
He said this approach is why he dissents more than any other justice.
As for the court’s pro-business reputation, Boyd pointed out they are interpreting laws coming from the Texas Legislature.
“The laws of the state over the last 20 years have been increasingly pro-business,” he said. “Tort reform, medical malpractice reform, insurance reform. We didn’t pass those laws. But it’s our job to apply them.”
Justice Boyd’s challenger is Dallas County District Court Judge Staci Williams, a Democrat. Part of her pitch looks ahead to next year’s redistricting process, when lawmakers redraw federal and state legislative boundaries.
“There are going to be lawsuits, but it’s going to go up to the Texas Supreme Court,” Williams said, citing a decision by the U.S. Supreme Court making partisan gerrymandering an exclusively state issue.
“Do you want that decision to be reached by [a Texas] Supreme Court, full of one party? I don’t think so, because it’s not representative.”
Williams also said she would work to repair the court’s reputation after recent accusations that court decisions favor specific big-name law firms that also make big donations to the justices’ political campaigns. She wants to review which firms are granted requests to have their cases heard.
“The problem right now that they’re facing is perception,” she said. “So you need some individuals with a clean record to go in and ensure that justice is being dispensed fairly.”
For his part, Boyd said it’s often the case that lawyers on both sides of big cases have made political donations. He suggested the success of these attorneys is because they are experts in litigating at the Texas Supreme Court.
“Assume you had a case,” Boyd said. “You want somebody that understands how the court ... as an institution operates.”
Court Diversity
If elected, Williams would be the first Black female justice in state history.
Rhodes said while there are “some very good justices” on the court right now, it would benefit from different backgrounds and perspectives.
“Not every case that’s decided by the judges can always be decided by just looking at a law book and ‘here’s the answer,’” he said.
The Texas Supreme Court has to resolve the “most difficult questions,” including common law matters based on policy and precedent, not written statutes. Legitimate arguments can be made either way in many cases that make it up to the Court, Rhodes said.
“There’s no substitute in cases like that for a variety of perspectives from the justices,” Rhodes said.
