By Richard Wolf
December 20, 2015
When Texas Gov. Greg Abbott was his state's attorney general, he liked to sum up his approach to the job this way: "I go into the office, I sue the federal government, and then I go home."
These days, one could forgive the justices on the U.S. Supreme Court for thinking Abbott remains the state's chief law enforcement officer. From abortion and affirmative action to voting rights and, most likely, immigration, nearly all the court's top cases come from Texas.
"You could call this the perfect storm for putting Texas litigation in the limelight at the Supreme Court," says appellate lawyer David Frederick, a University of Texas School of Law graduate who has argued 45 times before the justices.
The state's 'Don't Mess with Texas' attitude toward Washington is but one reason for the Lone Star State's dominance of the high court's 2015 docket. Only its lawsuit against President Obama's executive action on immigration, in fact, is indicative of the state's anti-Washington fervor, and the justices have yet to decide whether to hear that case this spring.
In the other cases, the state or its flagship public university are on the defensive — against aggrieved voters, students and abortion providers. What ties them all together is the outsized role that Texas plays at the high court.
There are several reasons for the pileup, beyond the state's fondness for suing the federal government: The conservative U.S. Court of Appeals for the 5th Circuit, which covers Texas, Louisiana and Mississippi, attracts like-minded litigants. The Republican legislature and governor pass and implement laws that antagonize liberal interest groups. The state's changing demographics inspire racial and ethnic battles over voting rights and racial preferences. Its sprawling prison system includes the nation's most active execution chamber.
“For much of the past 15 years, the 5th Circuit was widely considered the most conservative appellate circuit in the nation," says Edward Blum, director of the Project on Fair Representation, which brought the racial challenges over redistricting and affirmative action heard at the court earlier this month. "So advocates wishing to bring litigation that will result in high-profile, conservative outcomes had incentive to go to the 5th Circuit.”
The state solicitor general's office has been so busy preparing for its Supreme Court cases and writing friend-of-the-court briefs in others that it asked the justices — unsuccessfully, it turned out — for an extra 30 days to answer the Obama administration's petition seeking a high court showdown over immigration. The delay likely would have pushed the case to the 2016 term beginning in October.
That case, which the justices could hear as early as April, symbolizes Texas' leading role among Republican-led states in suing Uncle Sam. Given the length of its border with Mexico and its large Mexican-American population, the state last December initiated the 26-state lawsuit against Obama's executive action, which would give more than 4 million undocumented immigrants a reprieve from possible deportation.
"This lawsuit is not about immigration," the state's initial brief said. "It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution."
Cal Jillson, a political science professor at Southern Methodist University in Dallas, says the immigration case illustrates Texas' belief in states' rights. It shows, he says, "a deeply held conviction among the political class in Texas that the federal government is overreaching and needs to be systematically checked.”
Neither of the cases the justices heard on successive days this month were initiated by Texas. In one, two Republican voters challenged the state's system of drawing legislative districts based on total population, rather than the number of eligible voters. In the other, a white high school student challenged the University of Texas' use of racial preferences in admissions.
In both those cases, ironically, the state and its university represented the more liberal position — defending policies that benefit racial and ethnic minorities. Also ironically, the 5th Circuit sided with them.
"Texas, by using total population, as states have done for decades — and no state today uses voter population — does not invidiously target groups to cancel out their voting power or reduce their ability to elect representatives of their choice," state Solicitor General Scott Keller told the court in the redistricting case, Evenwel v. Abbott.
The abortion case coming to the court early next year represents another type of Texas litigation: Laws passed by its conservative state government that prompt lawsuits from liberal interest groups. In Whole Woman's Health v. Cole, the justices agreed to hear a challenge from abortion providers concerned that pending restrictions on clinics and physicians will close all but 10 clinics in the state.
Amy Hagstrom-Miller, president of Whole Woman's Health, said Texas may be at the forefront of states seeking to restrict abortions, but it won't be alone for long unless the justices intercede.
“We have to understand," she said, "that what happens in Texas won't stay in Texas."
The state also is among those leading the fight against federal rules requiring most employers to provide health insurance coverage for contraceptives. It has filed a brief on behalf of two religious colleges and a theological seminary in Texas that object to the rule — one of seven challenges to the Affordable Care Act's so-called 'contraceptive mandate' that the Supreme Court will hear in March.
While this term's Texas docket may be unusual, it is not unprecedented. Last term, the state lost a major civil rights case over housing discrimination and successfully defended its right to refuse to issue license plates featuring the Confederate flag. In the prior term, Texas got a split decision of sorts in a major fight over greenhouse gas emissions with the Environmental Protection Agency, an arm of the government that former House majority leader Tom DeLay of Texas famously likened to "jack-booted thugs."
Other famous Texas cases to have reached the high court include Roe v. Wade, which struck down the state's anti-abortion law in 1973; Texas v. Johnson, which struck down the state's ban against desecrating the American flag in 1989; Lawrence v. Texas, which struck down the state's law against homosexual sodomy in 2003; and Van Orden v. Perry, which upheld the placement of a Ten Commandments monument on the grounds of the state Capitol in 2005.
For more information, go to: www.beverlyhillsimmigrationlaw.com