It looked very much like another politically charged Supreme Court decision last week. The all-Republican Texas Supreme Court sided with Republican Gov. Greg Abbott over 16 local Democratic judges in Harris County.
They had agreed with local Houston leaders to free as many jail inmates as safely possible to avoid the possibility of the county’s massive jail turning into the most efficient coronavirus incubator this side of nursing homes, cruise liners, and naval ships. Most the jailed inmates were awaiting trial and couldn’t afford bail. Similar efforts are underway in Bexar County.
A month ago, however, Abbott issued an executive order barring the release on personal recognizance bonds of any inmates who had ever been accused or convicted of a violent crime. Harris County judges were outraged. They pointed out that inmates with the same backgrounds who could afford bail were being released. Also, this would appear to include inmates jailed for low-level crimes who may have been charged and even acquitted of being in a barroom brawl many years earlier.
The judges, county court-at-law judges who handle only misdemeanor crimes, felt they were the ones who should decide who could be released without, in the governor’s words, “releasing dangerous criminals” into the community. They also raised concerns that a statement by Attorney General Ken Paxton that he “will not stand for any action” in defiance of Abbott might mean he would press criminal charges against any judges who did so.
The 16 judges, joined by the American Civil Liberties Union of Texas, the NAACP, and several other organizations, sued Abbott and Paxton, arguing that the governor was exceeding his authority and violating the state constitution’s separation of powers. An Austin state district judge, a Democrat, agreed. Judge Lora Livingston issued a temporary restraining order blocking enforcement of Abbott’s order. She expressed concern about an unconstitutional overreach of power and about blanket criteria for personal bonds.
The State appealed directly to the Texas Supreme Court, bypassing the all-Democrat Austin Court of Appeals. In the Supreme Court they not only had a body of nine Republicans, but three of the nine had been originally appointed to their positions by Abbott and four by his predecessor, Rick Perry. One could assume they might be respectful of the powers of the governor.
Sure enough, late last week the state Supreme Court unanimously ruled against the Harris County judges. They vacated the Austin judge’s temporary order blocking enforcement of Abbott’s order. So was the Supreme Court siding with its Republican political tribe over its professional judicial tribe?
After carefully reading their 15-page opinion in support of the decision, and after consulting with my personal bipartisan panel of experienced lawyers and judges, I’ve reached a verdict.
The Supreme Court was not playing politics. It was, instead, instructing 16 rookie judges on a couple of legal concepts they should have understood by the second year of law school. These Democratic judges were all elected to replace Republicans in the Democratic tsunami of 2018.
The first concept is called “standing.” It says that if you want to sue somebody you have to have suffered an injury at his or her hands. But the judges in this case had not suffered any injury. It wasn’t like another case cited by the judges’ attorneys in which judge’s pay raises were at issue. What’s more, the high court gave specific instructions for how the lawsuit could be done right.
“That does not mean the issues raised in this lawsuit are unimportant or cannot be litigated,” the justices ruled. “If a defendant in a bail hearing contends [Abbott’s] executive order is unconstitutional … the judge has a duty to rule on that issue, and the losing side can challenge that ruling” on appeal.
In other words, count on a lawyer to find a defendant who is being denied release under Abbott’s order because, say, he was accused of participating in a barroom brawl 20 years ago and has no violent history since. That lawyer can argue that Abbott’s order is unlawful without even working hard. He or she can just crib from the judges’ lawsuit.
Not surprisingly, an attorney already had that idea, and the case is on its way. Another case may find its way to the Texas Court of Criminal Appeals, our high court for criminal matters.
The other instruction for the rookie judges had to do with their concern that Paxton might throw them in jail. The justices found that concern to be overwrought and accepted the assertion on Paxton’s behalf that he made no such threat and that any enforcement would have to be done by local district attorneys. Since DAs have to go before those judges every day, it is unlikely they would have any enthusiasm for such a prosecution. Then there was a principle you would think even rookie judges would know about: judicial immunity – a subject covered in a “baby judges” orientation all new judges are required to take.
“Moreover, even if criminal prosecution of judges were genuinely threatened, the plaintiffs offer no reason to doubt that long-established principles of judicial immunity provide adequate protection,” the justices wrote. They added, “Judicial immunity prevents such ‘domination by other branches’ by giving a judge absolute immunity from liability for official judicial acts performed within the scope of his or her jurisdiction.”
If this issue gets back to the Texas Supreme Court and it sides with Abbott on the merits of the case, then there may be a good argument that it is a political ruling. But for now, all the high court is doing is giving the rookie judges instruction on how to do it right and telling them they can rule against the governor without worrying about going to jail themselves.
One more point: If we came up with a better way of selecting judges in counties of more than a million people, where there is no practical way for voters to screen the candidates, there may have been a few veteran judges in the group who could have told the rookies how to do it correctly from the beginning.