March 2008


Responding to a slew of recent press accounts regarding purported opinion delay at SCOTX, the Court’s Staff Attorney for Public Information–Osler McCarthy–published an editorial yesterday in the San Antonio Express-News that exposed the shoddy reporting and questionable methodology used by the press and self-styled nonpartisan “watchdog” groups who raised the allegations.

SMSB has been unimpressed with the hue and cry surrounding these accounts, and we’re glad to see Osler set the record straight.

The errata noted by Osler included: (1) a Dallas television station’s use of a watchdog’s backlog calculations, which curiously inflated the average time for issuing opinions by 152 days (some 40%) more than the Office of Court Administration officially reported to the Legislature; (2) two newspapers’ reports that almost doubled the actual number of causes carried over from the previous term; and (3) a watchdog’s fabricated use of a fiscal year ending in June, when the Court’s actual term naturally adheres to the State’s fiscal year, which concludes at the end of August.

Altogether, a fairly damning indictment of both the watchdog groups and the press that have long pretended to be nonpartisan.

Osler also notes that, despite having ten new Justices join the nine-member Court since April 2001, last year the Court produced the greatest number of opinions since 2000, as well as sixty-two signed majority opinions, the second highest number since 1999. Moreover, this productivity can only be improved by the addition of the new central staff attorney currently being sought by the Court.

Thx to Osler McCarthy for correcting the public record, the Texas Appellate Blog, and SCOTX Blog

The Man

With his recent validation by SCOTUS‘s decision in Medellin v. Texas, No. 06-984 (2008 ) and SCOTUS’s likely agreement with his briefing on behalf of thirty-one other states in District of Columbia v. Heller (no. 07-290), Texas Solicitor General Ted Cruz’s jurisprudential and political stock is on the rise.

Thx to
Concurring Opinions

Don't Mess With Texas

Two days ago, SCOTUS decreed that neither the President of the United States nor the International Court of Justice (ICJ) are constitutionally permitted to mess with Texas. I’m glad the Court finally came around.

In 2004, the ICJ handed down its judgment in Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Judgment of Mar. 31), which held the U.S. violated the Vienna Convention on Consular Relations (the “Convention”) by failing to inform fifty-one Mexican nationals of their Convention right to request assistance from the Mexican consul. The Avena court, which was comprised of “President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, [and] Tomka,” held the U.S.–by virtue of its violation of the Convention–was obligated to “‘provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican [affected] Mexican nationals.'” Medellin v. Texas, No. 06-984, slip op. at 3, 6 (2008 ) (quoting Avena, 2004 I.C.J. at 72).

In Medellin v. Texas, one of the questions Chief Roberts addressed was whether:

the [ICJ’s] Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.

Id. at 8. Despite Justice Breyer‘s contention in his dissent (joined by Souter and Ginsburg, J.J.) that the majority “look[ed] for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language),” the majority “confess[ed] that we do think it rather important to look to the treaty language to see what it has to say about the issue” because “[t]hat is after all what the Senate looks to in deciding whether to approve the treaty.” Id at 18. Because not even Medellin himself nor any of his amici could “identif[y] a single nation that treats ICJ judgments as binding in domestic courts,” Chief Roberts concluded that “[n]othing in the text, background, negotiating and drafting history, or practice among signatory nations suggests that the President or Senate intended the improbable result of giving the judgments of [the ICJ] a higher status than that enjoyed by ‘many of our most fundamental constitutional protections.'” Id. at 27.

Medellin’s second argument was that a February 28, 2008 Presidential Memorandum issued by President Bush, in effect, made the Avena judgment the “law of the land.” Id. The President’s memo directed the Attorney General to instruct the “State courts [to] give effect to the [Avena] decision in accordance with the general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.” Id. at 7 (quoting President’s Memorandum, __ PUB. PAPERS __ (Feb. 28, 2005)). However, the majority disagreed, observing that:

[While t]he President has an array of political and diplomatic mean available to enforce international obligations, … unilaterally converting a non-self-executing treaty into a self-executing one is not among them.”

Id. at 30. The Court concluded by reaffirming that constitutional “authority allows the President to execute the laws, not make them.” Id. at 37.

Thx to the Medellin majority and How Appealing


The Wall Street Journal has an extraordinary interview with Justice Clarence Thomas in today’s paper.

The interview is just full of enlightening insight into the man that has so long been an enigma of sorts. My favorite is the example of constitutional interpretation he gives his clerks, whereupon he takes a coat hanger and bends it in just a few places, with the result being that it can virtually never regain its original shape. Such is his view of the harm too much constitutional tinkering can inflict on our country’s founding document.

Justice Thomas continues:

Maybe I am labeled as an originalist or something, but it’s not my constitution to play around with. Let’s just start with that. We’re citizens. It’s our country, it’s our constitution. I don’t feel I have any particular right to put my gloss on your constitution. My job is simply to interpret it.

He notes that “”we should interpret the Constitution as it’s drafted, not as we would have drafted it.”

Admitting the Constitution is flawed, Justice Thomas counters that trying to warp it’s interpretation back the other way without jurisprudential justification doesn’t “clear[] up the problem, I’ve simply trumped it with my personal preferences.”

He also gives a great example of the over-importance given to stare decisis by modern-day jurists, pointing to Plessy v. Ferguson, 163 U.S. 537 (1896) (which officially sanctioned “separate but equal” segregation policies) as a prime example of the dangers of adhering to past decisions simply because they make up the past.

Justice Thomas even addresses his [in]famous predilection for choosing not to ask questions during oral argument and answers a question I first posed regarding his reasoning for doing so. Almost a year ago, I posited that his reluctance to ask questions during oral argument was either because “he generally makes up his mind from the briefing and thus feels no need to explore briefed issues with the appellate counsel in person,” or because “he views as more effective to swaying the votes of other Justices the circulation of opposing opinion drafts to pilloring the target Justice’s favored counsel” during oral argument. Well, Justice Thomas makes clear in the interview that, by and large, the cases are so thoroughly and well-briefed by the time they reach the Court, that “[m]ost of the answers are in the briefs. This isn’t Perry Mason.”

Thx to the WSJ , How Appealing, and, as always, to Justice Thomas

Last week, the New York Times published an article commenting upon a recent study published by the UC Davis Law Review, which purported to quantify the “influence” of the various state courts among their brethren.

Although the New York Times breathlessly found the “study’s methodology … smart and hard to quarrel with,” other state supreme court justices were not as easily impressed. One such justice anonymously and dryly observed:

[A] report by the chief supervising attorney of the Supreme Court of California and the reporter of decisions of California that concludes — voilà! — that California is the most ‘followed’ jurisdiction in the nation is presumptively suspect.

Texas’s own Don Cruse over at SCOTX Blog, had a more incisive and penetrating objection to the “smart … methodology” of which the New York Times was so enamored. Therein, Cruse explains that:

By focusing on “follows,” the study gives greater weight to decisions that ground themselves in broad notions of the common law rather than some other source of authority, say, a statute passed by a legislature. My guess is that this means the study overweights decisions that expand common-law doctrines — such as tort law, privacy rights, and the like. By contrast, court decisions that contract such doctrines (such as tort reform) often cite as authority the state’s own idiosyncratic statutes rather than “following” another state’s lead.

With that in mind, it seems little wonder that the Supreme Court of California is the leader in “follows,” as it remains in the vanguard of creating new common-law doctrines. And for those who have followed the ebbs and flows of Texas politics, it also seems unsurprising that the Texas court is less likely to lead in that category in the 1990s and 2000s than it was in the 1960s and 1970s.

In an interview with the New York Times, Judge Michael A. Wolff (only that court’s Chief is referred to as a “Justice”) of the Missouri Supreme Court echoed Cruse’s theory, explaining the California Supreme Court had been “out in front in emerging theories of liability,” and that such decisions “were accompanied by a Greek chorus of academic commentary, favorable for the most part as long as the trends remained liberal.”

Unsurprisingly, the California authors of the California law review article finding the California Supreme Court to be the most “influential” in the land, pointed to other factors explaining why California’s supreme court was “followed” most often; namely because of the “[r]eputation, [p]rofessionalism, and ‘[l]egal [c]apital'” displayed by the court. See Jake Dear & Edward W. Jessen, “Follow Rates” and Leading State Cases, 1940-2005, 41 U.C. DAVIS L. REV. 683, 706 (2007). The fact that the livelihoods of both authors depended upon the court the study deemed most “influential” was not overtly cited as a contributing factor however.

Thx to SCOTX Blog for it’s excellent analysis, Blawgletter, and to SCOTX for refusing to create new theories of liability where the law and facts don’t merit such action

Tx Dems

Seeing as how Hillary won the popular vote in Texas (albeit, likely in large part due to Republican crossovers), and Obama won the caucuses (in part, thanks to me), I thought I’d check back in on our brave local superdelegate who has been chronicling his adventures in the political process over at the New Republic.

Our suspense will last a little longer, apparently, as David Holmes hasn’t posted since before the Texas election, and from reading the comments, I can tell why. Just take a look at the mindless invective spewed at him (mainly by Obama supporters for pledging his vote to Hillary), to see why I cowardly choose to blog anonymously.

Insulting someone whose vote you seek to gain is not the brightest electoral strategy. I have it on personal authority that David Holmes is a bright, decent, and honorable guy, but you’d never know that from the tripe that fills up the comments on his most recent post.

*** UPDATE ***

Go check out David’s new outlet for his autodelegate musings–including his thoughts on the results of Texas Primary–over at The DOT Show.


As someone who both voted and caucused in the Democrat primary, I wanted to offer my amateur opinion that the split results–a Hillary win in the primary and an Obama win in the caucuses–is anectdotal proof that Republican crossovers handed Hillary the popular vote. Reason being that Republicans seeking to create havoc by voting for Hillary would be much more likely to simply show up and vote once for her (an odious act for any of us on the Republican side of the aisle), than to come back that evening to wait in line for 45 minutes to cast their caucus vote again for her. Accordingly, this explains why the caucuses seemed to follow the conventional wisdom much more closely than the popular vote did, because only true Democrats (me excluded) would bother with the whole unnecessarily convoluted caucus process. I can attest that when I signed my name for Obama, their was only one other caucus vote for Hillary on the caucus sheet, and the talk in line was much more focused on Obama than Hillary.

Thx to David Holmes for sharing his insights and experience with us


Wednesday, the appellate panel hearing oral argument in Turner v. City Council at the Fourth Circuit had a tad more Article III flair than usual, as retired SCOTUS Justice Sandra Day O’Connor sat by designation in the case. At issue was whether a city council’s “nonsectarian” prayer violated the Establishment Clause.

Thx to the Washington Post and AbovetheLaw

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