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Contrary to what you may learn on Twitter, Justice Willett is capable of thought much deeper than humorous tweets about the three Bs: bacon, Blue Bell, and Baylor. His concurring decision in In re State of Texas is a passionate defense of procedural regularity, even in the most controversial of cases involving same-sex marriage.

The facts of the case are straightforward, and disturbing. Texas law requires a judge to notify the Attorney General before declaring a law unconstitutional. A judge in Travis County (Austin) ignored this law. The judge declared the state’s same-sex marriage amendment unconstitutional, then a couple was immediately married, after which the case was non-suited as moot to prevent an appeal. This chicanery makes the procedural shenanigans in the Federal Courts look tame. The Attorney General, after learning about the case, sought mandamus.

Willett agrees that the case is moot, but that doesn’t give the Travis County judge a free pass:

In light of Obergefell, the case is entirely moot, so the Supreme Court of Texas unanimously dismissed the case as moot. However, Justice Willett concurred in judgment to explain the close connection between procedure and the rule of law. I write today not to belabor a societal debate but to underscore a legal point presumably beyond debate: Laws matter. When John Adams enshrined the ideal of “a government of laws and not of men” into the 1780 Massachusetts Constitution, he upended things, declaring that citizens should be governed by clear laws consistently applied, not personal whims.2 Adams was echoing Aristotle, who two millennia earlier wrote, “law should govern.”3 The Rule of Law is one of America’s—and Texas’s—foundational presumptions. In this case, regrettably, Texas law was frustrated rather than followed.

Unfortunately, rancorous cultural disputes seem to induce jugglery, by lawyers and judges alike. In 2014, for example, a Texas court of appeals rebuked a trial court for doing the very thing that happened here—declaring Texas marriage law unconstitutional without first alerting the attorney general.10 But it is precisely in divisive, consequential cases when by-the-book fastidiousness by courts is most vital, to blunt even the appearance of evasive corner-cutting or politicized judging.

Willett explains that courts are not free to waive procedural safeguards.

Despite the constitutional stakes (or perhaps because of them), the trial court failed to comply with the Legislature’s unqualified command that the State’s chief legal officer be afforded the opportunity to defend the constitutionality of Texas law.9 When violations of law slip uncorrected through the cracks of judicial review (as when a case is dismissed as moot), it may seem that the beneficiaries of such violations receive a free pass. The pass is not free. It comes at the expense of the Rule of Law. Here, the Legislature’s notice mandate is unsubtle and unequivocal, as was the trial court’s failure to follow it.

These principles hold true, regardless of what judges view as the “right side of history.”

This was an invalid invalidation. No matter the cause du jour, no matter the perceived exigencies, Texas law forbids the striking down of Texas law without first respecting the attorney general’s statutory opportunity—and constitutional duty—to defend it. Every Texas jurist swears allegiance to the Rule of Law, vowing to “preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.”11 That solemn oath comes first—always— not our ideology, not our legacy, and not our desire to be fêted as on the “right side of history.”

…

My focus today is legal, not cultural. In a judicial system that demands no-favorites adherence to clear and predictable legal rules, furtiveness (to tilt the playing field) and faithfulness (to keep it level) cannot coexist. Faithfully applying the law cannot mean short-circuiting one Texas law in order to strike down another.

A law may be unfashionable. It may even be unconstitutional. But it cannot be undefended.

I wish more judges would take this lesson to heart. We can all disagree about substance, but procedure is the glue that holds together the rule of law.

The final question posed in a lengthy interview with outgoing Texas Chief Justice Wallace Jefferson:

BDS: Is Justice Don Willett the same in person as he is on Twitter? And has he offered to give you any social-media lessons?

WJ: He is, I would say, one of the most famous members of the court. I don’t follow him on Twitter, so I don’t know if he’s the same in person, and he has not given any tutorials. I signed up a few years ago when I was thinking I’d have to campaign, but I never used it. The danger is, how far do you go? I don’t have to worry about that now.

Justice Willett is exactly the same person as he is on Twitter. In fact, I sat next to him at the Federalist Society Convention, and watched him as he tweeted. I could see the sly grin seconds before his humorous tweet popped up on twitter.

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.

 

Texas Supreme Justice Don Willett, a friend of this blog, wrote a thoughtful concurring opinion in Robinson v. Crown Cork & Seal Company, focusing on the interplay between the state, the courts, and individual liberty. I wrote a lengthy post analyzing the opinion here.

I am very pleased to see that George Will, one of my favorite columnists, picked up on Willett’s opinion, and quoted it at length in his column in the Washington Post.

Fortunately, a Texas judge recently wrote an opinion that provides pertinent clarity about the tension between judging and majoritarianism. The Texas Supreme Court, on which Don Willett sits, struck down a law for violating the Texas Constitution’s prohibition of retroactive laws. The law immunized one company from a pending lawsuit by a man dying of asbestos exposure. The question was: Should the court blindly defer to the Legislature’s judgment that its police power – its general authority to protect the public welfare – trumped the constitutional ban on retroactive legislation?

The court said no. What Willett said in his concurring opinion is pertinent to the health insurance mandate.

Has the U.S. Supreme Court construed the commerce clause so permissively that Congress has seized, by increments, a sweeping police power that enables it to do virtually anything it wants? Willett’s words, applied to the Obamacare mandate debate, highlight this question: When does judicial deference to legislative majorities become dereliction of the judicial duty to discern limits to what majorities are lawfully permitted to do?

Willett says: In our democracy, the legislature’s policymaking power “though unrivaled, is not unlimited.” The Constitution reigns supreme: “There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands.”

Thus a legislature’s judgment that a measure is desirable does not relieve a court of the duty to judge whether it is constitutional. “The political branches decide if laws pass; courts decide if laws pass muster,” wrote Willett. Judges must recognize that legislators’ policymaking primacy “is not constitutional carte blanche to regulate all spheres of everyday life; pre-eminence does not equal omnipotence.”

What Willett says of the states’ police power is applicable to Congress’s power under the commerce clause: “When police power becomes a convenient talisman waved to short-circuit our constitutional design, deference devolves into dereliction.” And: “If legislators come to believe that police power is an ever-present constitutional trump card they can play whenever it suits them, overreaching is inexorable.”

The judiciary’s role as referee of constitutional disputes is, Willett says, “confined yet consequential.” But, “If judicial review means anything, it is that judicial restraint does not allow everything.” And there can come a “constitutional tipping point” where, by excessive deference to a legislature in the face of a constitutional limitation, “adjudication more resembles abdication.” Then a state’s police power (or Congress’s power under the commerce clause) can “extinguish constitutional liberties with nonchalance.”

Like the U.S. Constitution, the Texas Constitution, Willett notes, is “irrefutably framed in proscription.” It “declares an emphatic ‘no’ to myriad government undertakings,” no matter how much a majority might desire them. So does the U.S. Constitution, as in the first words of the Bill of Rights: “Congress shall make no law . . .”

Judicial review, he writes, sometimes means preventing today’s majority from overturning yesterday’s supermajority – “the one that ratified our solemn Constitution.”

Hence the idea that federal judges are accountable to no current constituency. When construing the Constitution, however, they are duty-bound to be faithful to the constituency of those who framed and ratified it.

“There is,” Willett explains, “a profound difference between an activist judge and anengaged judge.” The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary’s duty to declare what the Constitution means. Let us hope the Supreme Court justices are engaged when considering the insurance mandate.

Bravo.

Unsurprisingly, the Constitutional Accountability Center has a reply.

A few months ago I attended the Institute for Justice Law Student Conference.

Justice Don Willett of the Texas Supreme Court gave the keynote address. He was awesome. An amazing libertarian Judge from Texas who gets the idea of the role of the courts, understands principles of federalism, and embraces the spirit of liberty that imbibes the human soul.

During his keynote, he mentioned that he had cited YouTube in a footnote in his opinion. Strange coincidence, but in footnote 313 of my Omniveillance article, I had cited him!

FN 313. FKM P’ship v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 639 (Tex. 2008) (Willett, J., concurring in part, dissenting in part), available at http://www.supreme.courts.state.tx.us/historical/2008/jun/050661cd.htm

I realized it, and mentioned it to him after he finished speaking. He encouraged me to mail him a copy, which I did.

I just received a personal thank you note from Justice Willett! I won’t relay the message, but it was so cool.

Even cooler than the thank you note was the stamp on the envelope that reads “Don’t mess with Texas. Official State of Texas Mail. Penalty for Private Use.” Perfect timing for Will Ferrell’s perfect Bushism. Strategery!