The press reacted very quickly to the Perry Homes decision, getting stories onto their online editions:
“Texas Supreme Court rules against Mansfield couple in battle with homebuilder” by Wayne Slater of the Dallas Morning News. This one has been “above the fold” on the online version of the website.
“Houston homebuilder Bob Perry wins big in Texas Supreme Court” from the Texas Politics blog at the Houston Chronicle.
“Renegade Texas Supreme Court?” by the Legal Trade blog (part of the Houston Chronicle). Not a whole lot of analysis, just an invitation for blog commenters to weigh in on “the court’s anti-arbitration, pro-federal control and pro- medical malpractice case sanctions decisions?” (We aren’t as hungry for comments here, but then again, we aren’t selling ads.)
“Question for Readers: The Case Against Bob Perry” - Lapsed lawyer Paul Burka of Texas Monthly has his own shout out for reader comments about the case. The comment thread on that site is pretty interesting, with several of the early posters supportive of the legal result of the decision.
All of the stories have the same implicit thesis (and the bloggers make it explicit), suggesting that campaign dollars drove the decision. Yet, none of the stories tries to square that thesis with the 5-4 split of the Justices in this case. If you use these numbers from an earlier Dallas Morning News story (which aggregated contributions from groups associated with Bob Perry over the 2001 to 2006 timeframe), it looks like Perry had given twice as much in contributions to the four Justices who dissented than to the five who ruled in his favor (a total of $209,000 ($52,000 per Justice) versus $131,000 ($26,000 per Justice)). There are lots of ways to spin that, none simple enough for a sound bite.
Of course, this really isn’t a question of math — it’s a question of public confidence. As someone who reads all of the Court’s decisions, I’ve been struck by how deeply divided the Court was here, as it has been over so many recent cases. Those persistent divisions seem to me to undermine the simplistic equation that “campaign contributions equal favorable decisions,” but, by the same token, the closeness of high-profile decisions such as this one may give more fuel to advocates of tougher recusal rules.
And one of those advocates has been former Chief Justice Phillips of the Texas Supreme Court. I missed passing this along earlier, but he wrote the Foreward to a report issued in April by the Brennan Center published its report about using heightened recusal standards to reduce concerns about judicial election and selection: “Fair Courts: Setting Recusal Standards” by James Sample, David Pozen, and Michael Young. A synopsis is here.1
- I mentioned an op-ed written by James Sample in this earlier post about election-related controversies in other states. ↩
2 responses so far ↓
1 UTLaw71 // May 3, 2008 at 11:45 am
The issue here is the appearance of bias. Perhaps justice was done in Perry Homes, but the Supreme Court’s reputation has taken a horrible hit because of its willingness to hear a case in which one of the parties contributed large sums to each of the justices. They desparately need to review their guidelines for both accepting contributions and for recusals. Their current laissez faire approach destroys the Court’s credibility.
2 Don Cruse // May 5, 2008 at 8:06 am
I agree, and I think the best solution is out of the Court’s control. That would be an appointment system that took out campaigns. By requiring Justices to run statewide campaigns, the current system asks them to somehow pay for those campaigns.
Recusals might work well in many cases. If a single Justice has accepted sizable contributions and decides to recuse, that does address the problem of public perception. But when the entire Court is in the same situation, recusals may not really help. In part, that’s because of how interim justices are chosen. In Perry Homes, for example, mass recusals would have forced the governor (who has personally received more contributions than the entire Court) to select interim justices to hear this case. I’m sure each interim justice would have endeavored to decide the case fairly, but the press narrative about campaign cash would have been the same.
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