Anyone in Texas who is involved in consumer rights or plaintiff law has had concerns for years about the makeup and the big-business proclivities of the Texas Supreme Court. So it came as no surprise to us to read a recent article in the Dallas Morning News regarding Governor Rick Perry’s appointments to the Court. Here are excerpts:
Over his 10 years in office, Rick Perry has picked more Texas Supreme Court justices than any other governor, and if he wins the White House, his choices could be a clue about what kind of justices he would nominate in Washington.
While Perry has been praised even by his critics for bringing diversity to the state’s highest civil court, critics say the governor leaned heavily on conservative, business-friendly ideology and gave too little consideration to judicial qualifications.
Texas high-court judges are elected, but the governor fills vacancies when sitting justices step down, so six of the nine current justices (all are Republicans) are Perry picks. Of those, four are racial minorities, two are women, and two have no prior experience as a judge. A Perry spokeswoman said the governor appoints the most qualified people based on their experience, background and legal philosophy.
What the appointees have in common, consumer groups, environmental watchdogs and other Perry critics say, is a strong enough leaning toward corporate interests that it’s nearly impossible for individuals to win cases against large corporations.
“Over the last decade, the Texas Supreme Court has become a safe haven for big insurance companies and corporate wrongdoers and has developed a well-earned reputation as results-oriented,” said Alex Winslow, director of Texas Watch, a consumer advocacy group. “Time and again, this activist court has rendered decisions that defy logic, ignore precedent, and rewrite the law in order to reach a result that benefits a few powerful corporate interests.”
The justices say this criticism lacks merit because they are following the law as the Legislature enacted it.
“The court’s role is to interpret the laws as written by the Legislature,” said Justice Eva Guzman. “So if the Legislature has passed a law that tends to favor individuals over corporations, or vice versa, then the court interprets the law to give effect to the Legislature’s intent as expressed in the words of the statute.”
Statistics show recent court decisions tend to favor oil companies, insurance firms and other big businesses. A report by Texas Watch found that since 2000, consumers have won 22 percent of cases in the high court, while defendants have won 75 percent.
Many point to the difficulty, for instance, of bringing suit against a nursing home or hospital. While lawmakers enacted measures in 2003 to cut down on lawsuits against doctors, the court has construed those statutes to mean that almost any suit over what happens in a medical environment is a malpractice case.
That means when patients suffer things like spider bites and sexual assaults, it’s tough to win at the Supreme Court.
“This court twists and contorts basic logic to reach its conclusions,” Winslow said. “The court has broadened and expanded an already draconian law and made it even worse.”
Sherry Sylvester, a spokeswoman for Texans for Lawsuit Reform, an influential group that has pushed for lawsuit limits, said the restrictions have strengthened the Texas economy and restored public trust to the courts.
“Further, Governor Perry has appointed exemplary judges to Texas courts who are honest, competent and conservative,” Sylvester said.
Among the cases critics point to is Entergy vs. Summers, in which the court’s unanimous ruling allows businesses to escape legal and financial liability for contract employee injuries that happen on their property — even if the company’s actions are what led to injury or even death.
Land Commissioner Jerry Patterson, a conservative Republican, has gone up against the high court in several cases, notably a case where Exxon Mobil plugged the wells of property owners in such a way that the wells couldn’t be re-entered. The Supreme Court reversed a lower court decision that had ordered compensation for the family and held that the family had waited too long to bring their case, so the claim was essentially moot.
“We have an activist court on this case,” Patterson said. “Clearly this was a decision that was tailored to reach a pre-conceived outcome that just didn’t make sense.”
The justices have repeatedly pointed to the differences in their professional backgrounds as proof that the court is varied and diverse.
“There’s a notion that because we’re all Republican, we’re all like-minded and we march in ideological lockstep,” said Justice Don Willett. “That is laughably untrue.”
Willett has been regarded skeptically by some because he was never a courtroom lawyer or a lower court judge. His resume includes stints in the U.S. Justice Department, in the Texas attorney general’s office and as a legal adviser to President George W. Bush.
“You’re clearly not appointing the best legal scholar when you’re appointing someone who has never had courtroom experience,” said Paula Sweeney, attorney and past president of the Texas Trial Lawyers Association. “Some of his appointments are good, but Perry has worked from an ideological approach.”
Lucy Nashed, a Perry spokeswoman, said the governor seeks to add to the court’s depth of experience and “appoints strict constructionists who will adhere to the philosophy that judges should interpret law and not make it from the bench.”
Chief Justice Wallace Jefferson came to the court with a strong private appellate practice that included arguing successfully before the U.S. Supreme Court, although he never sat as a lower court judge. He said that although Perry has the power to appoint judges, the voters ultimately decide who remains on the bench.
“Certainly if there were real objection to the court as a whole or to individual justices, then it has to work itself out in the political process,” Jefferson said.
Others also argue that there’s benefit to bringing in lawyers with real-world experience. The current U.S. Supreme Court consists almost entirely of former appellate judges, prompting some critics to suggest that it lacks an understanding for how its decisions play out.
Willett wrote a concurring opinion in Barbara Robinson vs. Crown Cork & Seal Co. Inc., in which the court struck down a law as unconstitutional on the grounds that it was retroactive. The law would have insulated a company from an ongoing lawsuit over a man’s death from asbestos exposure. Willett wrote that judicial deference doesn’t mean deferring to the Legislature on everything, especially not constitutional violations.
“I have no idea whether the governor’s office liked that decision, but it was a tort reform bill that this court struck down as unconstitutional,” Willett said, noting Perry’s support for lawsuit restrictions. He added that the case shows the court doesn’t have any qualms about siding with a plaintiff or individual over a business.
When George W. Bush was governor, his appointments to the court also leaned toward business interests in its decisions, but statistics show that in 1998-99, the court ruled for defendants 60 percent of the time. Some court observers say that although his jurists were conservative, they were far more moderate and fair minded than the Perry court.
“Bush appointees were scholarly and very well-qualified,” said Sweeney of the trial lawyers association. “This shows that we have in the past been able to get the best and brightest on the court. By comparing those jurist credentials to what we have now, the question is self-answering.”
But when Bush got to the White House, he appointed two staunchly conservative Supreme Court justices — John Roberts and Samuel Alito. Perry critics in Texas fear that Perry would do the same.
“If Rick Perry plans to use the same low standard for judicial appointments that he has used in Texas, then the results will be devastating,” Winslow said.