The Nelson Law Firm Blog

Royal Furgeson: Federal court vacancies imperil Texas justice

Austin American-Statesman Opinion by Royal Furgeson

Retired Federal Judge and Dean of the University of North Texas-Dallas School of Law compares the current vacancies in the Texas Federal courts to the Mavericks or Spurs playing games with only 4 players on the court. 

David Schleicher, Is legislating from the judicial bench suddenly acceptable?

Waco Tribune-Herald Opinion by David Schleicher

A great opinion column from my law school classmate on judicial activism:

Imagine you are a U.S. Supreme Court justice ruling on a law outlawing homosexual conduct. Do you uphold the law because such matters are better left to the discretion of legislatures? Or find the law an unconstitutional interference with liberty and an invasion of the right to privacy? Justice Antonin Scalia was on the losing side in that 2003 case and displeased with what he saw as the majority’s judicial activism.

Scalia wrote that our system was designed so the people (through their elected officials) made such calls instead of having judgments “imposed by a governing caste that knows best.” In other words, since federal judges are not elected, they should not be legislating from the bench. In a close call, they should trust the judgment of those who are elected, even if the judges might have made a different law had they been serving in a state legislature or in Congress. Chief Justice John Roberts has put it this way: “My job is to call balls and strikes and not to pitch or bat.”

Many were stunned that Chief Justice Roberts — widely regarded as very conservative — stood by this principle even though it meant upholding much of the Obamacare law in a 2012 decision. He wrote for the majority in concluding that the health insurance mandate was constitutional because it was done through a tax on those who opted out: “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

His approach was in line with the 2008 national Republican Party platform describing “judicial activism” as a “grave threat,” with “unaccountable federal judges” “usurping democracy,” “ignoring the Constitution” and “imposing their personal opinions upon the public.”

Different view

Back to 2013. The Supreme Court is again facing a question of whether a law is unconstitutional. This time it’s the pre-clearance provision of the Voting Rights Act of 1965, which requires certain parts of the country to get advance approval from the U.S. Department of Justice for even what may seem to be minor changes in voting practices such as combining polling locations. Great progress has been made from the days when different standards were openly applied to those seeking to vote, based entirely on the color of their skin. The law has continued to be re-enacted, most recently in 2006 under President George W. Bush, set to endure for the next 25 years. Congress held numerous hearings and entered findings that the law was still justified by examples of voting rights being hindered on the basis of race and color.

The law originally passed with roughly 20 percent of Congress against it. This was at a period in history when a Southern senator would not hesitate to publicly condemn the Civil Rights Act from the prior year as something to be resisted “to the bitter end” for encouraging “social equality and the intermingling” of the races. But by the time of the 2006 vote, as Justice Scalia noted in recent oral arguments, “not a single vote in the Senate (was) against it. And the House is pretty much the same.”

However, just a few years later, Shelby County, Alabama, now argues the time for treating Southern states more strictly than Northern ones has passed — that it was an unconstitutional federal infringement on states rights to require that some states undergo pre-clearance when the blatant racism once shown by election officials is a relic of the past.

2 camps

As often happens, the justices split into two camps, one arguing that deference should be shown to Congress in coming up with the (admittedly imperfect) solution it did. The other camp argued that the very fact Congress acted near-unanimously a few years ago was a sign it could not be trusted to have made a reasoned judgment. Right. Imagine the president or Congress disregarding unanimous Supreme Court decisions on the basis that surely the Court hadn’t put much effort into those.

One justice even had the audacity to say that “it’s a concern that this is not the kind of a questions you can leave to Congress.” This justice may have forgotten that the 15th Amendment not only outlawed denying the right to vote based on race or color, it also directed that Congress had the “power to enforce this article by appropriate legislation.” A judge who is a “constitutionalist” and who loathes judicial activism surely would not substitute his or her personal judgments for these 2006 in-depth findings of a near-unanimous Congress.

‘Grave threat’

At this point, if you’re not enough of a political junkie to have listened to the oral arguments on C-SPAN, you may well be thinking that Justice Scalia was surely up on his high horse, leading the charge against a “governing caste that knows best.” Against what Justice Roberts might call a judge who tries to bat or pitch instead of merely calling balls or strikes. Or what the 2008 Republican platform would label as the “grave threat” of “unaccountable federal judges” who “impose their personal opinions.” We might assume that Justice Scalia would be the one to demand the lawyer before the court answer: “But who gets to make that judgment really? Is it you, is it the Court or is it Congress?”

If so, you assumed wrong, forgetting that the Supreme Court is stocked entirely with humans, a species that has a very poor record of applying their principles when they lead to an outcome they want to avoid. Even when Congress almost unanimously agrees on the best means of achieving a goal it is specifically authorized by the Constitution to undertake, that is not enough to keep some judges from assuming they know better than you and your elected officials.

Justice Scalia spoke with disdain of the motives of Congress, implying the name of the legislation (“Voting Rights Act”) would leave them too cowardly to vote against it. But the very next day the Texas congressional delegation cast more “no” votes than any other state’s lawmakers against reauthorization of a law named for preventing “Violence Against Women.”

“Legislating from the bench,” Scalia teaches us, is only offensive when it means overturning something as run of the mill as, say, a law permitting the arrest of someone for being gay.

David R. Schleicher is a local lawyer, political blogger and chairman of the McLennan County Democratic Party.

 

The Courthouse Drive: worth getting on I-35 to see

McLennan County Courthouse - worth getting on I-35 to see. 

Texas Monthly -- Miles and Miles of Texas

The 
Courthouse 
Drive

For more than a century, county courthouses have defined their communities—and created a sense of rivalry between nearby cities. And few architects have been as closely associated with the buildings as James Riely Gordon, who designed at least fifteen across the state, primarily in the Romanesque Revival style. Though we typically avoid I-35, the interstate makes it easy to see examples of his legacy in Waxahachie, Waco, New Braunfels, and San Antonio before heading east to Victoria.
START: Waxahachie
END: Victoria
DIRECTIONS: From Waxahachie, take I-35 south through Waco, New Braunfels, and San Antonio. Then proceed east on U.S. 87 to Victoria.
DISTANCE: 357 miles

Slate: Colbert v. the Court in the battle over Citizens United, the Supreme Court never had a chance.

Slate by Dahlia Lithwick

The Supreme Court has always had its critics. Chief Justice John Marshall had to contend with the temper of President Andrew Jackson (“John Marshall has made his decision, now let him enforce it!”). And Chief Justice Charles Evans Hughes went toe-to-toe with FDR, who wouldn’t let up with the court-packing. But in the history of the Supreme Court, nothing has ever prepared the justices for the public opinion wrecking ball that is Stephen Colbert. The comedian/presidential candidate/super PAC founder has probably done more to undermine public confidence in the court’s 2010 Citizens United opinion than anyone, including the dissenters. In this contest, the high court is supremely outmatched.

Citizens United, with an assist from a 1976 decision Buckley v. Valeo, has led to the farce of unlimited corporate election spending, “uncoordinated” super PACs that coordinate with candidates, and a noxious round of attack ads, all of which is protected in the name of free speech. Colbert has been educating Americans about the resulting insanity for months now. His broadside against the court raises important questions about satire and the court, about protecting the dignity of the institution, and the role of modern media in public discourse. Also: The fight between Colbert and the court is so full of ironies, it can make your molars hurt.

When President Obama criticized Citizens United two years ago in his State of the Union address, at least three justices came back at him with pitchforks and shovels. In the end, most court watchers scored it a draw. But when a comedian with a huge national platform started ridiculing the court last summer, the stakes changed completely. This is no pointy-headed deconstruction unspooling on the legal blogs. Colbert has spent the past few months making every part of Justice Anthony Kennedy’s majority opinion in Citizen United look utterly ridiculous. And the court, which has no access to cameras (by its own choosing), no press arm, and no discernible comedic powers, has had to stand by and take it on the chin.

Saving Texas history, one ancient legal document at a time

Texas Monthly by Michael Hall

Houston attorney Bill Kroger and state Supreme Court chief justice Wallace Jefferson are on a mission: to persuade hundreds of counties to prevent thousands of courthouse papers from being lost to neglect. Can they save Texas history, one ancient legal document at a time?

Judge-bashing not healthy: Federal judicial system intended to be impartial, independent

In honor of Texas Governor Rick Perry's proposals for overhauling the federal judiciary. [Revised from Guest Column by Susan I. Nelson, printed in The Waco Tribune-Herald, December 27, 2006]

Since her retirement, former Supreme Court Justice Sandra Day O'Connor often speaks on the importance of an independent judiciary. She does not advocate federal judges as lawmakers but stresses the importance of keeping judges independent from the legislative and executive branches as the Founding Fathers intended. She speaks against judicial reforms driven by partisanship and against attacks on the judiciary made by politicians who disagree with decisions, such as in the Terri Schiavo case.

Justice O'Connor is right. Recent criticism has crossed the line from healthy debate to judge-bashing, and it threatens the fairness and impartiality of our courts.

Politicians and special-interest groups issuing warnings to judges simply because they disagree with the judges' decisions are attempting to be the "dictator" they would assert "activist" judges to be. Such attacks on judges display a fundamental lack of understanding of the role of the judiciary. They ignore the fact that the federal judiciary is a central component in our nation's system of checks and balances.

When our founders wrote the Constitution, they created three equal branches of government, purposely shielding courts from political influence so judges could protect our freedom. The founders were clear that the judicial branch must be independent of the executive and the legislature. They knew the president and members of Congress would be indebted to the individuals who elect them and to interest groups. The Constitution's framers wanted judges to be distanced from those pressures.

An independent judiciary was at the core of the freedom and independence sought by the signers of the Declaration of Independence. Among the facts submitted to the world to prove the tyranny of the King of England over the American colonies were "refusing his assent to laws for establishing judiciary powers" and making "judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries." The Constitution created a system in which judges are different; they consider only the facts and the law in making decisions, which gives all of us our day in court. We must not turn back the clock.

Judges are accountable in several ways. Judges must obey the Constitution and other laws and must follow ethical rules and codes of conduct that hold them to higher standards. When someone disagrees with a judge's decision, that person can ask a higher court to review it. Judges don't make the law, they only apply laws written by a legislature. If a legislature does not like the way laws affect the public, it is the legislature that can change them or write new laws; judges do not have this power.

We all have the right to fair and impartial justice. When our courts are attacked unjustly, we must defend them--even if we disagree with the decision--so they will remain able to protect our rights. If we do not, when it is our turn to be in court, we might find a far different judge than the one envisioned by our Founders, one that has become the tool of the privileged few.

When it is our turn to seek justice, we will wish we had spoken out to keep our courts fair and impartial and free from political pressure.

 

The Wrath of Khan and Footnote 21

by Alan Nelson 

When I read a recent Texas Supreme Court ruling I chuffed.

I coughed, I gasped, huffed, whiffed and heaved and panted in disbelief.

The cause number? No. 06-0714.

The style? Barbara Robinson, Individually and as Representative of the Estate of John Robinson, Deceased, Petitioner v. Crown Cork & Seal Co., Inc., Individually and as Successor to Mundet Cork Corporation, Respondent.

The odds for the plaintiff? Not good when you consider the court's track record over thelast decade.

The surprise? Three surprises in fact.

One, the court ruled on the basis of the Texas Constitution.

Two, the court lifts a major corporation back on the hook for asbestos claims despite the mighty efforts of the Texas Civil Justice League, the Product Liability Advisory Council, and the Texas Attorney General's office.

Three, and the item that made me chuff, was that the Texas Supreme Court quotes Star Trek. Not the majority opinion, but the concurrence by Justice Willett, who is joined byJustice Lehrmann.

In footnote 21 of Justice Willett's concurrence to Barbara Williams v. Crown Cork & Seal Co, he (or some uncredited law clerk) writes:

See STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale ofTwo Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book's opening and closing passages. Most memorable, of course, is Spock's famous line from his moment of sacrifice: "Don't grieve, Admiral. It is logical. The needs of the many outweigh ..." to which Kirk replies, "the needs of the few."

At this point, I must say I'm surprised the Supremes didn't request Michael C. Smith of Siebman, Reynolds, Burg, Phillips & Smith, LLP to supply an amicus curiae brief on the application of Star Trek, or for that matter, any sci-fi show and its application to Texas law. Any law/Star Trek nerd worth his or her quantum salt knows that Smith is the ultimate authority on this matter.

Footnote 21 is placed to lend support to the Willett's statement:

"First, we recognize that police power draws from the credo that "the needs of the many outweigh the needs of the few." Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan) …"

And that's Vulcan as the planet Vulcan in Gene Rodenberry's universe, not the universe at hand, or the Roman mythological god of the smelter and volcanoes, or vulcanized rubber.

In addition, I'm not sure that Dickens actually could be credited with this statement other than in some broad thematic statement from a literary grad student's perspective. While Sidney Carton sometimes is credited with this statement in a Tale of Two Cities, I never have found that statement, and again with modern text search, still don't find it. And in fact, Sidney Carton sacrificed his life for the life of the wife of Charles Darnay, not for the many.

Thank goodness Willett didn't quote Star Trek III: The Search For Spock where Kirk said: "… the needs of the one ... outweigh the needs of the many."

Thank goodness he didn't go to the most recent Star Trek movie of 2009, where there are alternate universes. Theoretically, in an alternate universe, Crown Cork & Seal Company win, and the majority opinion is written by Justice Wainwright.

But we're in this universe in which you read these words. And yes, I have a chip on myshoulder regarding Star Trek and the law. My practice court professor put it there back in law school when I made a cultural reference in argument.

In a closing argument, I said that the technical language on a warning might as well have been Greek or Klingon for all the warning it communicated.

The professor immediately interrupted my closing argument.

"Klingon?" he rasped. "Klingon? Ineffective argument!"

After that confrontation, a classmate who collected comic books stopped me to inform me that he spoke Klingon, and any warning in Klingon would have been an effective communication, thus contradicting my argument.

After years and years and years that feel as long as traveling through a singularity, I am vindicated. Long live Footnote 21. Live long and prosper, Justice Willett.

(reprinted from Arbitrary and Capricious on the Litigation Section of the State Bar of Texas website)