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 retention election.
“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 courts.
“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 system.”
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.”