Three times during the U.S. Supreme Court term that ended this week, Texas went before the justices and lost.
In Texas v. California, the court by a 7-2 vote rescued the Affordable Care Act from attacks hurled by Texas and other states.
New Mexico won in a dispute over the use of Pecos River water in Texas v. New Mexico.
And don’t forget the December post-presidential election case of Texas v. Pennsylvania, which asserted that the votes of numerous states were fraudulent. The Supreme Court dismissed the case in four days, without a hearing.
It was not all a loss. As is customary, Texas took the lead or joined numerous other states in filing amicus curiae briefs. For example, Texas joined a brief on the winning side in Brnovich v. Democratic National Committee, decided July 1, in which the majority approved Arizona voting restrictions.
The fact that Texas lost in the Affordable Care Act case but was a side winner in the voting rights case, suggests that the Supreme Court term was not always as conservative or predictable as some observers thought when Amy Coney Barrett joined the high court last October.
“A takeaway from the term is the sheer diversity of coalitions among the justices in their various opinions this term,” said former Texas solicitor general Scott Keller, now a partner at Lehotsky Keller, a new boutique firm located in Washington and Austin. “I can’t think of another term in which you had the justices forming such a wide variety of coalitions amongst themselves.”
Kyle Hawkins, also a former Texas solicitor general and now a partner at Gibson, Dunn & Crutcher, had the same viewpoint, adding some advice to practitioners: “The mix of vote line-ups is a good lesson that advocates should approach every case assuming that every vote is in play. The challenge for the best advocates is to find and make the type of arguments that can attract votes from different ideological backgrounds.”
Here’s a rundown of Texas and Texas-related Supreme Court decisions this term, with an eye toward next term as well:
— Texas v. New Mexico: By a 7-1 vote, the court upheld the river master’s determination that Texas was responsible for the of huge amounts of water evaporated in a reservoir in New Mexico, because Texas had requested storage of the water under the Pecos River Compact.
— Texas v. California: Texas and 17 other states were found to lack Article III standing to challenge the minimum essential coverage provision of the Affordable Care Act. The vote against Texas and its allies was 7-2.
— Texas v. Pennsylvania: Again, invoking the issue of standing, the court issued a brief, unsigned order rejecting Texas Attorney General Ken Paxton’s assertion of “unconstitutional irregularities” in the presidential election voting in Georgia, Michigan, Pennsylvania and Wisconsin.
— HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association, and PennEast Pipeline Company, LLC v. New Jersey: Neither case hails from Texas, but both were of keen interest to the oil and gas industry, and the industry won. In HollyFrontier, the court by a 6-3 vote ruled in favor of small oil refineries that seek “hardship exemptions” from requirements of Renewable Fuel Standards under the Clean Air Act. In PennEast, the court ruled 5-4 that private pipeline companies, with the help of the federal government and the Natural Gas Act, can overtake land for projects through eminent domain, even if states want pipelines to be blocked.
— San Antonio v. Hotels.com: In a dispute between San Antonio and online travel companies over the taxation of services, there was debate over costs of the litigation. The Supreme Court ruled unanimously that appellate procedure rules don’t allow a district court to alter a court of appeals’ allocation of the costs.
— City of Austin, Texas v. Reagan National Advertising of Texas Inc.: This case, set for next term, asks whether Austin’s municipal sign regulations amount to unconstitutional content-based regulation under the First Amendment.