USA Today
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
No comments:
Post a Comment