The Texas Tribune has an article today about the challenge in the Republican primary to incumbent Justice Felipe Reyna of the Waco Court of Appeals. Justice Reyna was appointed by Governor Perry in 2003 and reelected in 2004.

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The Texas Supreme Court did not issue any opinions or grant any new cases for review in today’s order list.

The Court is scheduled to hold a two-day private conference next week, so there may be more to report next Friday.

On this blog, I’ve gotten very used to commenting on the dueling arguments between the authors of dissenting and majority opinions, with the occasional new perspective offered by a concurrence.

But I’m now out of practice.

It’s been five months since any Justice authored a dissent or a concurrence to a merits decision of the Texas Supreme Court.¹

This is an unusual level of unanimity, and it deserved a mention here, regardless of what might happen with tomorrow’s order list.

Concurrences and dissents are sometimes collectively called “separate opinions,” in which at least one Justice stands apart from the Court to express a divergent view.

Between 2001 and 2009, the Court never had a year in which it issued fewer than 25 such separate opinions in merits cases. The absence of any such opinions so far this year marks a sharp departure from 2008 and 2009, when the Court issued around 50 separate opinions per year. ²

This might just be the luck of the draw. It might be a natural result if the Court is focusing on less contentious cases while its new Justice gets time to weigh in on more divided ones. Or it might reflect a new trend.

That last possibility would of course be the most interesting for Court watchers. Besides the remarkable unanimity so far this term, the other clue pointing in that direction might be the unusual voting pattern in City of Waco v. Kirman, No. 08-0121 (docket and briefs) — where Chief Justice Jefferson elected not to join the bulk of the Court’s opinion. But, instead of authoring a separate opinion to express his disagreement, he simply joined the single ground in the opinion with which he agreed.³ Of course, City of Waco might just be an outlier. The Chief Justice might have felt that, in this unusual case, his vote could express his view without the need for further elaboration. ⁴

1. In those five months, the Court has issued 15 per curiam opinions and 11 signed majority opinions. The most prolific author so far is Justice Green, with 3 majority opinions.

   The only dissent disagreed with the Court’s denial of review — which is not a decision on the merits — in Watson v. Newman, No. 09-1066 (docket and briefs), a case about the immunity extended to off-duty policemen. I briefly mentioned it in this longer post about that day’s order list. [↩]

2. I would do the math to extrapolate this year’s projected total, but anything times zero is zero. [↩]
3. The voting breakdown in the City of Waco case: “Justice Green delivered the opinion of the Court, in which Justice Hecht, Justice O’Neill, Justice Wainwright, Justice Medina, Justice Johnson, Justice Willett, and Justice Guzman joined as to Parts I–V, and in which Chief Justice Jefferson joined as to Part IV.” [↩]
4. One might infer from his vote that he thought it unnecessary to reach the broader policy questions discussed in the opinion when the narrower, alternative ground discussed in Part IV was available. [↩]

This week’s orders list was not accompanied by any opinions or new grants.

The challenge to Texas’s parental-termination system in the US Supreme Court, which I first wrote about in this post, has come to a quiet end.

The case became notable when the US Supreme Court formally called for the views of the Texas state solicitor general, believed to be the first such request. The Texas SG did file that invitation brief, recommending that the Court deny review. With today’s order list (PDF), the Court did.

With today’s order list, the Texas Supreme Court issued one per curiam opinion that was a routine application of a holding it made last year about preserving error in parental-termination cases.

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Most commentary about today’s Citizens United decision will focus on congressional and presidential elections.

But the decision may hit closer to home. Professor Rick Hasen brings some attention to the effect that Citizens United may have on judicial elections, especially in light of Caperton v. A.T. Massey Coal:

The ways out of this box are not easy to see. Corporate spending limits are effectively off the table. Disclosure alone is unlikely to get enough attention, particularly for a public that pays scant attention to judicial races. Recusal motions against particular judges are going to be hard to win.

The most direct way “out of this box” might be for individual judges to be more concrete (and public) about their recusal policies. That’s not an institutional answer, but it is one completely within the control of the judicial branch. A recusal policy that is easy for voters to understand would also be easy for voters to police.

Update: There is a related post over at First One @ One First, which has some extended quotations from the Citizens United dissent. That blog promises coverage of a panel discussion on this question next Tuesday at Georgetown Law including (among other luminaries) former Chief Justice Tom Phillips.

Court watchers in Texas have a unique resource in CourTex, a blog maintained by Carl Reynolds, the director of Texas’s Office of Court Administration.

In a recent post, Carl relayed some new data analyzed in his office about the frequency of jury trials in Texas. For the past three years, roughly half of one percent of civil matters ended in a jury trial.¹

1. These numbers were calculated to exclude family-law cases. [↩]