A reader points me to Senate Bill 780 introduced by Senator Kirk Watson of Austin that would open up many of the Texas Supreme Court’s internal votes to public scrutiny. This bill seems to respond to last May’s Texas Watch report about “anonymous” decisionmaking.
The proposed language:
Government Code Sec. 22.0071. DISCLOSURE OF INDIVIDUAL VOTES OF MEMBERS. In an order granting, refusing, dismissing, or denying a petition for review, the supreme court shall state how each member voted on the petition or application.
That would be a dramatic departure from current practice, where the Court only notes if a Justice has recused himself or herself, not how each member voted.
For practitioners, this would be a wealth of new data — but I’m not sure it would actually help make better strategic litigation decisions. If the Court does start disclosing votes, I would certainly give analyzing them a go (and you’ll read about it here on this blog). But I suspect that, at least in early years, there would be far more noise than signal. (( The bill does exclude one of the key steps in the current Texas process — the Court’s vote to request full briefing on the merits under Texas Rule of Appellate Procedure 55.1. ))
But it’s easy to see the political value of disclosing individual votes. If this bill passes, then over a six-year term, a typical Justice’s exposure to attack ads would go from dozens of opinions with their name as author to thousands of individual petition dispositions with their name attached. Find a particularly juicy set of facts in a petition denial, run a political ad about how Justice So-and-So voted against it, wash, rinse, repeat. (I’m not a political pro. I’m sure the pros have more sophisticated ideas.)
I don’t know how many other state supreme courts disclose all of their conference votes, but I’d be interested to learn how appellate lawyers have used that information to help their clients.