Last week, the Texas Senate Jurisprudence Committee heard testimony on Senate Bill 780, the bill to require the Texas Supreme Court to report how each Justice voted on each petition disposition.

The hearing is available on video (requires Realplayer). At the suggestion of a reader, I watched the hearing this morning. SB780 was first on the agenda, and that portion of the hearing lasts about 25 minutes.

Senate Bill 780 was proposed by Senator Watson of Austin, who argued that
“votes on petitions for review constitute decisions of that court” and that, as such, should be available. He also expressed concern that the public did not have enough information to evaluate judges up for reelection. And he ended by remembering Chief Justice Jefferson’s state of the judiciary speech and its statistics that 80% of Texans believe the current system gives judicial campaign donors an advantage.

Several witnesses spoke in favor of the bill. Each of them mentioned at least one instance where a Justice actually did note their dissent to a denial of review under the current system. As I keep writing, I just don’t see how that is an argument that the current system needs to change.

David Chamberlain indicated that he and his clients would like more data to evaluate to help guess which issues most interest the Court.

The policy director of Texas Watch compared the vote to grant or deny a petition to the committee stage of a legislative body, arguing that the public has an equal right to know. (( My knowledge of legislative procedure may be lacking, but aren’t there many bills in the Texas Legislature that die without a formal vote? ))

And former Justice Bob Gammage testified in favor, arguing that the current system not only denies voters information but also robs “potential contributors” of information they need to “cast their resources” most favorably. That argument gave me pause.

The core disagreement was about the proper role of politics in the courts. Proponents tended to argue that having more information could lead to more meaningful political campaigns. Senator Watson suggested the bill would give a tool to those who want to attack what they perceive as special interests on the Court.

The only witness who spoke against the bill was former Texas Supreme Court rules attorney Lee Parsley, an appellate lawyer in Austin. His basic point was that requiring votes to be disclosed would be “taking an already political process and introducing another political element when we should be going the other way.”

Parsley also argued that disclosing all of these votes could add time to the process. Although it’s true that actually counting the votes would take very little additional time, the problem is that the Justices might feel the need to explain in written opinions any votes that might appear controversial. His example was a case with a fascinating, compelling fact pattern that cried out for justice … but where the party had clearly waived the issue. Justices might end up writing short opinions — not for the parties or to clarify the law (since petition denials are not precedential) but for their political audiences.

A question was asked about how long it could really take to write a short little opinion like that. Parsley’s answer was, in essence, that writing 1000 opinions like that could take a long time. I would add another layer of complication — getting Justices to concur with (or disagree with) each other’s short little opinions could lead to even more court time being consumed in what is ultimately a political exercise. (( Here’s a procedural riddle: If six Justices all want to deny review for the same reason and write an opinion to that effect, does that become a binding decision of the Court? I have seen the Texas Supreme Court write an opinion of the Court “denying” review. My reaction was, “What precedential status could such an opinion have?”

In practice, lower courts would likely follow the lead (although they might not strictly have to, even in the same case) and future Texas Supreme Courts would likely reach consistent decisions. But if that future Court disagreed, would it be “overruling” the prior opinion?

We may see more opinions in this interesting sort of limbo if SB780 passes. ))

Senator Watson asked a different question, expressing his view that it would be worth the political costs if exposing these votes led to different decisions in at least some of the marginal cases that come before the Court. His view is that, if a close case gets granted because the votes are made public, that makes the costs worthwhile. He dismissed the idea that this would increase the political polarization, instead arguing that it might shed light on “how political it really is.”

Parsley concluded with a call to remove money from the equation of judicial politics, somewhat echoing how Senator Watson ended his own initial statement with a call to increase public confidence in the courts. Everyone wants some change to the current system. The question seems to be whether it should be through more politics (SB780) or less (judicial appointment and election reform).