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Litigation Journal

Spring 2023: Presentation

Partisan Judges

Lonny Hoffman


  • There’s a widespread sense that at least some sitting justices act unconstrained by long-accepted norms of impartiality. 
  • The consequences of departing from a steadfast commitment to judicial neutrality are becoming more apparent. 
  • The reason we value judicial independence isn’t to let judges follow their personal predilections.
Partisan Judges
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Public confidence in our courts has hit a new low. A September 2022 Gallup poll found the weakest expression of support for the judicial branch in half a century.

Unquestionably, the problem originates at the top. Even before the Supreme Court issued its decision in Dobbs, confidence in the nation’s highest court already had been badly weakened. Today, there’s a widespread sense that at least some of the sitting justices act unconstrained by long-accepted norms of impartiality. (As I write, the most recent headlines include allegations that Justice Alito leaked to dinner companions how the Court would rule in the 2014 Hobby Lobby case. It’s a shocking accusation, especially as it comes on the heels of the still-unsolved mystery of the leaked draft opinion in Dobbs (also written by Alito).)

Although politicization of the Supreme Court may be sui generis, the trickle-down consequences of departing from a steadfast commitment to judicial neutrality are becoming more readily apparent—and are equally troubling. The example I want to shine a spotlight on comes from an intermediate appellate court in Texas. The proceeding was brought by ExxonMobil. Invoking a state rule of procedure that in certain circumstances allows a prospective claimant to investigate claims before suit, the Texas-based oil giant said it wanted to look into potential claims it might bring against several California cities, counties, and government officials. No one doubted that Exxon’s suit was a calculated effort to gain home-field advantage after it (and several other companies) had been sued in California for climate change damages caused by their fossil-fuel emissions.

The oil company’s effort was unsuccessful. The three-judge appellate panel concluded that it had no choice but to dismiss Exxon’s petition on jurisdictional grounds. But if the outcome was legally unquestionable (“our reading of the law simply does not permit us to agree with Exxon[]”), it did not sit well with the panel, which felt it needed to say more. Here’s what the panel wrote:

We confess to an impulse to safeguard an industry that is vital to Texas’s economic well-being . . . . Lawfare is an ugly tool by which to seek the environmental policy changes the California Parties desire, enlisting the judiciary to do the work that the other two branches of government cannot or will not do to persuade their constituents that anthropogenic climate change (a) has been conclusively proved and (b) must be remedied by crippling the energy industry. And we are acutely aware that California courts might be philosophically inclined to join the lawfare battlefield in ways far different than Texas courts.

Being a conservative panel on a conservative intermediate court in a relatively conservative part of Texas is both a blessing and curse: Blessing, because we strive always to remember our oath to follow settled legal principles set out by higher courts and not encroach upon the domains of the other governmental branches; curse, because in this situation, at this time in history, we would very much like to follow our impulse instead.

City of San Francisco v. Exxon (Tex. App. Fort Worth, June 18, 2020) (pet. denied) (Kerr, J., joined by Birdwell, J., and Sudderth, C.J.).

Perhaps we should be comforted that these judges didn’t give in to their professed bias, but pardon me if I’m not consoled. Confessing to a parochial prejudice to favor local industry while reassuring the electorate of the court’s conservative credentials? That’s a blatant violation of a judge’s fundamental ethical obligation to render unbiased judgments, starting with the state’s very first judicial canon (mirroring a nearly identical standard in virtually every jurisdiction) to uphold the judiciary’s “integrity and independence.”

And yet, as if this story weren’t bad enough, the Texas Commission on Judicial Conduct later exonerated these judges, dismissing an ethics complaint brought against them. Apparently, it was better for the court to proclaim its bias than to hide it.

Whatever the commission’s thinking, Justice Kerr’s shameless admission of the panel’s partiality and its after-the-fact blessing by an administrative body that’s supposed to be promoting the judiciary’s integrity and nonpartisanship are a contagion that threatens to spread, further undermining judicial neutrality. It should go without saying that the reason we value judicial independence isn’t to let judges follow their personal predilections. Quite the opposite. Chief Justice William Rehnquist observed, “The Constitution protects judicial independence not to benefit judges, but to promote the rule of law.”

Everybody likes a happy ending, but I’m not sure I have one to offer. In the November 2022 election, Justice Kerr won reelection by a landslide. Chief Justice Sudderth and Justice Birdwell are both on the ballot in 2024. In this “relatively conservative part of Texas,” I wouldn’t bet against them.