Editor’s note: This article was written in advance of the governor’s announcements Wednesday.
Applicants for the new business court system admire Antonin Scalia and other conservative U.S. Supreme Court justices and several who served on the Texas counterpart. Among cases cited as wrongly decided are SCOTUS rulings that upheld the Affordable Care Act and gave deference to federal regulatory agency statutory interpretations.
Scalia, the late Supreme Court justice known for his adherence to originalism and textualism, was by far the most admired jurist, with seven individuals naming him as a judge, living or dead, whom they admire. They also are asked to pick a U.S. Supreme Court decision they think was wrongly decided.
The Texas Lawbook reviewed about thirty applications from lawyers and judges interested in being appointed to the newly created business trial courts and statewide Fifteenth Court of Appeals, which will review appeals from the business courts and cases involving state entities. The documents, totaling about 600 pages, were provided by Gov. Greg Abbott’s office in response to Public Information Act requests.
The judicial questionnaire used by Abbott’s office asks a series of questions about applicants’ background and experience.
They must describe five cases they have litigated or presided over as a judge. They write short answers to questions about the proper role of the judicial branch in Texas, the proper role of the court to which they seek an appointment, the role of precedent in decision-making, how they would go about deciding an issue of first impression, and under what circumstances it is appropriate for a state court to declare a statute unconstitutional.
My Favorite Judge
Daniel Pipitone was among applicants for the business trial court who selected Scalia. The Houston litigator for Munsch Hardt Kopf & Harr said he met Scalia in the mid-1990s when the justice visited Corpus Christi for a Fifth Circuit Judicial Conference that Pipitone helped organize.
“Justice Scalia’s quick wit has oft been noted, but his intellect and devotion to the concepts of stare decisis and strict constructionism created a basis for both admiration and a desire for imitation,” said Pipitone.
The next most popular was Justice Clarence Thomas, who received three nods, followed by John Marshall, who was named twice. Other SCOTUS members getting at least one vote were William Rehnquist, Samuel Alito and Sandra Day O’Connor.
Current and former members of the Texas Supreme Court also were highlighted, including Joe Greenhill, Brett Busby, Nathan Hecht, John L. Hill, Robert Calvert and Raul Gonzalez. Two applicants who sit on district court benches named fellow district judges they admired.
Seth Hopkins, special assistant in the Harris County Attorney’s Office, noted that Chief Justice Hecht, who is retiring later this year, guided the Texas judiciary through state disasters and a pandemic. “He has overseen numerous technological advances in the courts and the modernization of rules of administration, practice and procedure,” said Hopkins, who applied for the intermediate appellate court. “He has also made it a priority to keep cases moving and encourage civility.”
Scott Brister, an appellate lawyer at Hunton Andrews Kurth who is seeking appointment to the Fifteenth COA, listed several former colleagues on the Texas high court, including Hecht, Tom Phillips, Wallace Jefferson and Priscilla Owen. “They were invariably conscientious, diligent, honest, insightful, humorous, and a delight to work with,” Brister said.
Jennifer V. Caughey, who applied for one of three positions on the new court of appeals, selected the judge she clerked for, Timothy M. Tymkovich of the Tenth Circuit U.S. Court of Appeals. Caughey, a former First COA justice and current chair of Jackson Walker’s appellate section, said she admires Tymkovich for adhering to the law as it is written.
“I watched him reach a conclusion contrary to his predilection when clear text dictated that outcome. He did so because he respects the limited role of the judiciary,” she said.
Three applicants could not limit their admiration to one jurist, with one naming a total of seven federal and state judges and justices.
Wrongly Decided Cases
By far the most unpopular SCOTUS case named was National Federation of Independent Business v. Sebelius. The 2011 case saved the Affordable Care Act in a 5-4 decision, and was selected by five applicants.
Roy Ferguson, a district judge in West Texas who applied for the Fifteenth Court of Appeals, explained his decision.
“By recharacterizing a coercive federal penalty as a legitimate exercise of the power to tax, and deeming the refusal to engage in commerce to itself be commerce, the Court as a matter of first impression harnessed the power of the commerce clause to justify limitless federal control over all personal conduct—both action and inaction,” Ferguson said.
Three cases were each picked twice, including Roe v. Wade, Kelo v. New London, and Chevron v. National Resources Defense Council.
David M. Gunn, who applied for both the trial and appellate court, said that Kelo stretched eminent domain “to the breaking point.” He noted that the Texas Legislature quickly adopted a limit on condemnation to protect property rights.
Sylvia A. Matthews, an MDL judge seeking appointment to the business court in Houston, said the 1984 Chevron ruling “creates a separation of powers problem” and noted that the Supreme Court will have an opportunity to reconsider it in the pending Loper case.
Other applicants reached back in history to select cases broadly considered among the Supreme Court’s worst rulings, including Dred Scott v. Sanford (1857), Plessy v. Ferguson (1896), and Korematsu v. United States (1944). They were selected, respectively, by Michael Landrum, Seth Hopkins and Jessica Jaramillo-Moreno.
Applicant Charles K. Eldred disagreed with Plyler v. Doe, the Texas case that afforded public education to children of illegal aliens. Malcolm E. Whittaker thought the court missed the boat in finding a privacy right to contraceptive use in Griswold v. Connecticut.
Natalie D. Thompson, a former assistant Texas solicitor general, disagreed with Arizona v. United States, the 2012 case that threw out provisions of a law that created a state-law crime for being unlawfully present in the country. A similar Texas law known as Senate Bill 4 is under review by the federal courts.
Brister declined to name a case he disagreed with. And there was this atypical response from Angus E. “Andy” McSwain, a Waco litigator who applied for the Austin-based business court and wrote “honestly – I do not follow the U.S. Supreme Court enough to have a real opinion.”