AUSTIN – The Texas Supreme Court in January ruled that it will decide
whether the husbands and wives of gay city employees in Houston deserve spousal
benefits, a rare reversal reportedly driven by pressure from Gov. Greg Abbott
and dozens of other top Republicans.
According to Nick Lyell, an associate with ReThink Media, the
decision reversal came amid alleged pressure from a massive email campaign and
pressure from conservative leaders and lawmakers.
“There are three judges in the Supreme Court who are up for
election in 2018 in Texas’ historically high-dollar and partisan judicial
elections,” he told The Record. “It calls into question whether their reconsideration of
the case is due to political pressures rather than genuine legal concern.”
Eric Lesh, Fair Courts Project director with Lambda Legal, an
LGBT litigation firm with an office in Dallas, said it is unlikely we will ever
know if the Court gave in to political pressure.
“That’s really beside the point,” Lesh told The Record. “The integrity of
a fair and impartial judiciary depends on public perception that the court did
not and would not do that.”
Lesh pointed out that rehearing of an order denying review
is statistically rare (about 3 percent or less). The optics are terrible for
the court, especially given the unassailable fact that the U.S. Supreme Court’s
marriage equality decision in Obergefell controls the result here, regardless
of how the individual justices may feel about the merits of that decision.
“The U.S. Supreme Court has the final voice on what the
Constitution requires,” Lesh added.
Lesh also pointed out that political pressure should not be
a factor on the judicial process.
“State judges are not politicians. We want judges to decide
cases based on the law and the facts – not political pressure, popular opinion
or fear of retaliation,” he explained. “Each day, thousands of elected judges
in state courts across the country make decisions that could cost them their
jobs if the law requires a ruling that is unpopular enough to anger a majority
of voters or inspire special interest attacks.”
Lesh pointed out that in 2009, justices on Iowa’s Supreme
Court ruled unanimously that the state’s marriage ban was unconstitutional. In
response, outside special interest groups spent almost $1 million to
remove three well-respected justices during what should have been a routine
“The groups were successful,” he said. “They sent a clear
message to judges across the country: 'rule against us, and you will be next.'”
The trend of electing judges by popular election is
virtually unique to the United States. As former U.S. Supreme Court Justice
Sandra Day O’Connor put it, “If the State has a problem with judicial
impartiality, it is largely one the State brought upon itself by continuing the
practice of popularly electing judges.”
“The notion that judges should not be subject to retaliation
for particular rulings is grounded in the U.S. Constitution, which grants
federal judges life tenure and protected salaries,” Lesh said. “Alexander
Hamilton was right when he explained in Federalist 78 that subjecting judges to
re-election would be ‘fatal to their necessary independence.’”
Texas is one of only six states to use partisan elections to
select high court judges. Another 15
states use nonpartisan elections and in 29 states, the governor or legislature
initially appoints judges to the highest court.
For a body that is to be untainted and impartial, spending
in judicial elections is skyrocketing. This can reduce public confidence in the
“Seventy-six percent of Americans believe that campaign cash
affects court decisions. Almost half of judges agree,” Lesh pointed out. “Recent
empirical studies also show that the flood of money in judicial elections
causes judges to issue more pro-business rulings, send more people to jail, and
sentence more people to death. Lambda Legal recently conducted a study that
showed that state high courts whose judges stand for election are less supportive
of LGBT rights claims."
Former Texas Supreme Court Chief Justice Wallace Jefferson
has condemned the judicial election process in Texas, calling it “a broken
In an effort to address these issues, State Rep. Justin
Rodriguez, D-San Antonio, has filed House Bill 958, which calls for an interim
study on judicial selection methods.
According to Lyell, a number of states already have systems
in place that insulate the courts and their judges from big-money and political
partisanship, focusing them on their job – to defend the constitution.
A commission-based appointment system of selecting judges
based on merit is the best way to boost public confidence in the courts and
guard against money and political influence affecting judicial decision-making.
Lesh noted that 22 states have a system. In the meantime, he said Texas should
adopt rules regulating judicial campaign conduct.
“State courts across the country need to work to improve
judicial diversity,” he concluded. “Women are half of the population but less
than a third of state judges; people of color make up 40 percent of the
population but less than 20 percent of judges.”