Before he became the newest member of the Supreme Court last month, James P. Sullivan was a zealous advocate for Texas as a top lawyer for the attorney general and governor.
In 2012, he took his advocacy too far, according to an opinion of the Fifth U.S. Circuit Court of Appeals, by filing a “disturbingly unprofessional” petition in the case of an intellectually disabled man who had been locked up for more than three decades without a valid conviction.
A Fifth Circuit panel struck Sullivan’s rehearing petition for the state of Texas, saying it “reveals a lack of respect for the court.” Acting on its own motion, the court submitted a certified question to the Texas Court of Criminal Appeal that led to the defendant getting a new trial.
Sullivan disclosed the matter in his judicial appointment questionnaire obtained by The Lawbook under the Texas Public Information Act. The question asked: “Has your conduct as an attorney or judge ever become the subject of sanctions, disapproval or criticism in any written order or opinion of a court?”
“In Hartfield v. Thaler . . . my petition for rehearing en banc was stricken for tone,” Sullivan wrote in response. “I apologized to the Court for having given offense and committed myself to ‘disagree[ing] without being disagreeable.’” He attributed the quotation to Fifth Circuit Judge Edith H. Jones from a 1991 Texas Law Review article.
The case involved Jerry Hartfield, whose 1977 conviction and death sentence was overturned in 1980 by the Texas Court of Criminal Appeals in a unanimous decision. The court held that the state had violated Hartfield’s constitutional rights by striking a juror for cause because of her reservations about the death penalty.
In 1983, then-Gov. Mark White commuted Hartfield’s sentence to life in prison. In 2007, Hartfield, with the help of a fellow inmate, filed a pro se federal habeas application and a magistrate judge appointed a federal public defender as counsel. Hartfield claimed he had been deprived of a new trial in violation of his right to a speedy trial.
After a 2015 retrial that relied largely on reading testimony from the initial trial because key witnesses had died, Hartfield was convicted and sentenced to life in prison for the murder of Eunice Lowe, an employee of a Bay City bus station. In Hartfield’s subsequent appeal, the Court of Criminal Appeals found the delay between the trials was extraordinary and the state’s conduct was not merely negligent.
Hartfield was released from prison in 2017. The Marshall Project called his case “an extraordinary tale of justice delayed and denied.”
Justice Sullivan declined to speak with The Texas Lawbook. Amy Starnes, director of public affairs for the court, said that Justice Sullivan received no “sanction” from the Fifth Circuit.
“Justice Sullivan self-reported the per curiam panel opinion . . . because it expressed ‘disapproval’ or ‘criticism’ — not ‘sanctions.’ As seen in Justice Sullivan’s quotation of Judge Edith Jones, he has the utmost respect for the Fifth Circuit and the outstanding federal judges who serve on that important court,” said Starnes in an email.
Sullivan, 43, was appointed to the court in January by Gov. Greg Abbott to fill the position held by Jimmy Blacklock, whom Abbott elevated to chief justice. Sullivan had served as general counsel to Abbott and as assistant solicitor general when under then-Attorney General Abbott. Between his two government jobs he worked for more than four years as a senior associate at King & Spalding.
Sullivan was a law clerk to Judge Thomas B. Griffin on the U.S. Court of Appeals for the D.C. Circuit. He received a B.A. in political science and economics from Rice University and was a walk-on football player. He received his J.D. from Harvard Law School, where he was an articles editor on the Harvard Law Review.
He is married to Alithea Z. Sullivan, a partner at Stone Hilton in Austin. The couple are parents to a son.
Relatively unknown in the Texas legal community, Sullivan’s judicial application sheds some light on his judicial philosophy. Most of his litigation experience was in federal court, the document shows, with only 20 percent in state appellate courts.
Asked to describe five of the most significant litigation matters he personally handled, Sullivan listed four reported decisions from the Fifth Circuit and one from the U.S. Supreme Court. In the Supreme Court case, Sullivan worked with then-Solicitor General Jonathan F. Mitchell in the state’s successful bid to invalidate an Environmental Protection Agency regulation of greenhouse gas emissions under the Clean Air Act.
At the Fifth Circuit, Sullivan drafted appellate briefs and presented oral argument in a successful bid to vacate a federal rule compelling intrastate pipelines to make daily internet posts about natural gas. In another Fifth Circuit case, he saved key portions of a state law aimed at regulating deceptive charitable solicitation bins. He said the court’s 2011 opinion in that case, National Federation of the Blind of Texas v. Abbott, described him as “the able Assistant Solicitor General.”
Here is a sampling of Sullivan’s answers to other questions.
On the role of precedent and stare decisis: “For the Texas Supreme Court, stare decisis commands adherence to binding precedent from the U.S. Supreme Court on questions of federal law, and counsels judicial humility in assessing the considered views that have shaped its own precedent over time. That said, a Justice of the Texas Supreme Court swears an oath to ‘preserve, protect, and defend the Constitution and laws of the United States and of this State’—not the opinions that his fellow Justices have printed in the South Western Reporter. Jurisprudential stability is a good that cannot be pursued at all costs.”
On a judge whom he admires: “By pairing his formidable intellect with a relentless appetite for toil, Judge Henry Friendly achieved legendary status on the U.S. Court of Appeals for the Second Circuit. His opinions are a model of judicial craftsmanship, characterized by erudition and analytical rigor that still reward careful study decades after they were written. Judge Friendly’s profound insights about the metes and bounds of judicial power reflect a healthy skepticism toward the notion that a robe qualifies its wearer to cure all societal ills.”
On a U.S. Supreme Court decision that he considers wrong: “In Kennedy v. Louisiana (2008), the Court invented a constitutional prohibition against death sentences for adults who rape children. The Court did not bother parsing the text of the Eighth and Fourteenth Amendments, as understood by the People who ratified them and gave them the forces of law. Instead, a bare majority of the Court subjected legislators and jurors in every State to ‘[e]volving standards of decency,’ as divined by five Justices sitting in Washington, D.C., and to a crude exercise in nose-counting. Kennedy was wrongly decided because it was a methodologically unsound act of judicial hubris.”