Justice Don Willett, a long-time friend of this blog, and a member of the Harlan Institute Board of Advisers, offered an interesting perspective on judicial elections in the Lone Star State in an exchange with Andrew Cohen in the Atlantic. One of Justice Willett’s other comments seems to have gotten lost in the shuffle about campaign contributions. Willett addressed the perception that his Court is pro-business.
It’s also important to underscore that the laws we interpret are enacted by a very business-friendly legislature. My court doesn’t put a finger on the scale to ensure that preferred groups or causes win, but the Legislature certainly does. Lawmakers are fond of lawmaking, and the business lobby exerts significant influence on state policymaking. Then those laws come to the courts for interpretation. If the legal playing field is tilted in favor of business, that’s chiefly due to legislative choices, not judicial ones. And when those choices go too far and collide with constitutional guarantees, I’ve voted to strike them down. …
This image is no doubt aided by the fact that all 9 members are Republicans, appointed by a Republican Governor. Willett countered saying that not only is the appointing Governor a Republican, who tends to be business-friendly. So is the Texas Legislature, which has passed business-friendly laws for years. So, Willett asks, is it so surprising that the Court’s rulings tend to tilt one way? Aren’t the Justices applying the law given to them?
I’m sure others would counter that the law isn’t as pro-business as the Texas Supreme Court has interpreted it. Or, the Justices are placing their own thumb on the scales, due, in part to their need to solicit campaign contributions. But this is an important question that is lost all too often in these “pro-business” studies of courts.