Taking It to the Court
"In America, secret justice is not acceptable," said TPJ's Cristen Feldman. "The Texas Supreme Court currently rejects nine out of 10 appeals on a secret ballot. How are voters supposed to make intelligent choices when hundreds of the Court's decisions are kept secret every year?"
Other plaintiffs include Common Cause, the League of United Latin American Citizens (LULAC), the Texas Observer, Supreme Court Green Party candidate Brad Rockwell, and individual voters from Denton and Del Rio. The plaintiffs will be represented by attorneys for the National Voting Rights Institute (NVRI), a Boston-based nonprofit legal center that specializes in campaign finance litigation, as well as attorneys from TPJ and the Texas ACLU. The suit names the Supreme Court Justices and clerk of the court as defendants. The plaintiffs argue that just as published decisions can reveal voting patterns -- and potentially undue influence on the judges from special-interest litigants or judicial campaign contributors -- so decisions on petitions for review could give the public more complete information about the court.
"We want this information disclosed to protect against bias, or potential corruption, or undue influence," said Feldman. "Having this additional information would allow the voters to better consider the philosophy of the sitting justices, especially in a state that bars campaigning justices from discussing particular legal issues."
Questions to the court were referred to the Attorney General's Office, since the AG would defend the case in court. AG spokesman Mike Viesca said that the state's attorneys had not yet received or reviewed the initial pleading, and therefore "It would be premature to comment at this time."
Since current Attorney General John Cornyn was formerly a state Supreme Court justice, it's possible that he may have to recuse himself from the case. "We hadn't really considered that before today," said Feldman, "but Cornyn's former position on the court does raise some interesting issues."
Although supreme courts in 14 other states do publish petition review votes, the Texas court has defended its practice as "traditional" and contributing to its efficiency. But significantly, the plaintiffs have found some support on the court itself for disclosure. TPJ cited a 1996 opinion by current Justice Nathan Hecht. "If our votes on applications [for review] were always public, some would change," Hecht wrote in his dissenting opinion in Maritime Overseas Corp. v. Ellis. "I am forced to conclude that the time has come for the Court to make public its votes on applications."