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.