On the Texas Supreme Court, judicial restraint is a dodge, not a virtue.
Like Jesus the Nazarene, one of President Trump’s nominees for the Fifth Circuit Court of Appeals comes from a place worthy of contempt — the Supreme Court of Texas.
Does that make Justice Don Willett, who is easily the most popular public official in Texas, thanks to his genial Twitter presence, a savior? Not quite. Come and see.
Contrary to what you may have heard, the Supreme Court of Texas does not faithfully interpret the law. Its first loyalty is to judicial restraint, a philosophy that bills itself as faithful, but actually represents an extreme over-emphasis on secondary matters of doctrine, which ends up obscuring the object itself. Judicial restraint is to the law what asceticism is to the Christian faith. Both produce emaciation and misery rather than fullness and righteousness, self-regard rather than sympathy. It’s one thing to reject an “anything goes” mainstream; it’s another to conclude that the highest calling is to will oneself almost out of existence.
In simple terms, if you go to court in Texas to assert a right against the government, you will almost certainly find that you have none. If there’s gray area, it will be interpreted in the government’s favor. If the black-and-white letter of the law is on your side, some procedural obstacle will thwart you. And if you have the substance and process right, the high court might still invent a way to duck you and your annoying demand for justice. In Texas, government officials enjoy something close to total impunity, and it’s the Supreme Court’s fault, no matter how often the court tries to shift responsibility for its unjust rulings to the Legislature, which is all of the time.
Willett, on the other hand, represents the great hope of those legal scholars who know exactly what I’m talking about. Of all the potential judicial nominees that the Trump administration has been considering, Willett is the favorite of the liberty-minded Constitutional scholars calling for “judicial engagement.” These folks aren’t calling for a new philosophy. In its simplest terms, judicial engagement just means getting courts to trim away some of the endless presumptions in favor of government legitimacy so that individuals get a fair hearing on the facts of a case.
It is opposed to judicial restraint, a philosophy invented by progressives who knew that the vast expansion of federal power under the New Deal would never survive serious review under existing constitutional standards. Its “Republican” advocates, from Earl Warren to William Brennan, Sandra Day O’Connor, David Souter, and John Roberts, have shaped a system in which almost all government action is regarded as inherently legitimate. In a formulation often cited by SCOTX (and coined by Roberts, I believe), “the cardinal principle of judicial restraint (is that) if it is not necessary to decide more, it is necessary not to decide more.”
The constitutionalist and libertarian scholars are excited about Willett because of an opinion he wrote in a case called Patel v. Texas Department of Licensing & Regulation, which concerned eyebrow-threading, of all things. The decision marked a rare victory for advocates of economic liberty. Since the Lochner decision in 1905 brought the workplace under government control, federal regulations have become nearly unchallengeable in court for any reason. Reason’s Damon Root called Willett’s concurrence “one of the most libertarian legal decisions I’ve ever read.” It convinced George Will that Willett ought to be on the U.S. Supreme Court, as a counter to Roberts’ deferential jurisprudence.
“Self-ownership, the right to put your mind and body to productive enterprise, is not a mere luxury to be enjoyed at the sufferance of governmental grace, but is indispensable to human dignity and prosperity,” Willett wrote. The 5-4 decision struck down an absurd, anti-competitive regulation that required eyebrow-threaders to pay for 750 hours of training that had little or nothing to do with their work. The principle, in paraphrase, was that under the Texas Constitution, there really was such a thing as a regulation too stupid and counterproductive to pass muster. So far, it’s had almost no practical effect, but it was an important symbolic win for libertarians.
Liberty advocates also cite Willett’s dissent in another matter involving civil asset forfeiture, the practice by which government seizes the property of people who haven’t been convicted of (or often even charged with) crimes. This form of theft by the state is now bigger than robbery nationwide.
“If the state of Texas wants to ensnare guiltless citizens and seize their property, it must do so — always — within the bounds of our Constitution,” Willett wrote, urging his colleagues in vain to take up an issue they’d ignored since 1957. You might think you detect a bit of irony there, but I’m not convinced. These guys have a view of government authority every bit as totalitarian as any leftist. Short of private murder licenses, I’m not sure there’s a legislative act this court would overturn.
Despite his talk of property rights and reassessment, Willett went along with a unanimous majority two years later in siding with a police department that had seized a Lincoln Navigator after a search deemed illegal by the trial judge. State law allows forfeiture of seized property if “the seizure was incident to a… lawful search,” but the search here had been ruled illegal. The trial and appeals courts understood it was open-and-shut. Yet SCOTX came to the mind-boggling conclusion that “the legality of the search does not preclude forfeiture.” The ruling was nonsense, but the elected Supreme Court justices in Texas have to deal with attack ads like any other politician, so you do the math.
In major decision after decision, Willett has been a disappointment, siding with the government over righteous individuals, even when the court had to rewrite the law to fit its preference for deference. (There are two types of judicial restraint: one says judges should sit on their hands while the state abuses you, while the other is OK with contributing a few slaps.)
In just the last few years, SCOTX:
- wiped out public records requirements for government dealings with businesses, making all crony capitalistic arrangements secret by law;
- knocked the teeth out of public records law, too, by allowing agencies to ignore statutory deadlines forever simply by claiming a lawyer was involved in a decision;
- punched an enormous loophole through all laws binding governments by deciding that agencies are free to arrive at whatever bizarre interpretation of the law they like, so long as they formally pick somebody to interpret the law away;
- punted on a lawsuit that the state Democratic Party filed against a local tea party that had trained poll-watchers, alleging that their activity somehow amounted to an unreported and illegal campaign contribution.
Actually, with that last one, the lawsuit wasn’t as crazy as it sounds. It’s Texas campaign finance law that’s insanely vague, menacing all private political activity and political speech. The court’s decision to dodge the issue was weak enough as a procedural matter, as the litigation had been structured by both parties to present the Constitutional question.
But the decision also shows the infirmity of judicial restraint. Other state courts have stepped in to uphold the First Amendment against laws regulating private political activity, particularly where little or no money is changing hands. What is desirable or wise about a decision that allows this chilling effect to remain? This seven-year-old case will come back to SCOTX one day, and if SCOTX does anything to uphold free speech then, it will surely do it in the narrowest manner possible, ensuring that nobody else benefits. That’s what judicial restraint means.
Willett sided with the majority in all of these cases. This is not a grand champion of Constitutional rights. But he may yet grow into one.
I hope that he’s confirmed, that higher office frees him up from the weight of bad doctrine, and that he pursues his inclinations far from the lazy statist apologetics of the Texas judiciary.
We do need that savior.
Don Willett in 2012 (Gage Skidmore/Creative Commons)