The troubling politics of the Texas Supreme Court's reversal on same-sex benefits

Last month, the Texas Supreme Court voted unanimously to overturn a lower court ruling guaranteeing benefits to the spouses of gay and lesbian public employees. The case will likely be the latest in a group of marriage equality cases to go to the U.S. Supreme Court, following Arkansas' Pavan v. Smith and Colorado's Masterpiece Cakeshop v. Colorado Civil Rights Commission.

The same nine members of the Texas Supreme Court voted last year to uphold the lower court's decision in the case, titled Pidgeon v. Parker, which was filed by Houston taxpayers Jack Pidgeon and Larry Hicks in 2013 after the city announced it would provide benefits to the same-sex spouses of public employees. By the time the state Supreme Court heard the case in September 2016, the U.S. Supreme Court had legalized same-sex marriage in its watershed 2015 Obergefell ruling, and the Texas justices voted 8-1 to drop the challenge to Houston's spousal benefits measure.

But on June 30, all eight Texas justices who had previously dismissed the case as without merit signed an opinion arguing the opposite, jeopardizing protections for LGBT public employees. While the U.S. Supreme Court recognized gay marriage, they said, it didn't require states to provide public benefits to same-sex spouses so denying such benefits was still constitutional.

What compelled them to change their minds?  

Some have argued they were riding a change in political tides. "The best explanation for the flip is that the Texas court of elected justices is sensing the mood of the state — and maybe the country," legal scholar Noah Feldman wrote earlier this year after the court agreed to hear the case. "It's anticipating that a Supreme Court with at least two Trump nominees could reverse Obergefell. And it wants to signal in some way that it's on the 'right' — i.e. wrong — side of constitutional history."

But there may be more to the story than a nationwide conservative swing. The Texas Tribune pointed to "an outpouring of letters" and "pressure from Texas GOP leadership — spearheaded by Gov. Greg Abbott, Lt. Gov. Dan Patrick and Texas Attorney General Ken Paxton — who asked the court to clarify that Obergefell does not include a 'command' to public employers regarding employee benefits."

Partisan elections and political pressure

While more than 20 states allow voters to elect judges to their highest court, Texas is one of only eight states to elect supreme court justices in partisan elections. Of those eight states, five are in the South. Besides Texas, they are Alabama, Louisiana, North Carolina and West Virginia.

Historically, judicial elections were seen as a means of keeping justices accountable to the people and ensuring judicial independence. However, a growing body of social science research suggests that judicial elections — and especially partisan contests — open justices to political influence. The Brennan Center for Justice finds that sitting judges in these states "may avoid making unpopular rulings in order to hold onto their jobs."

The Texas Supreme Court reconsidered its decision about same-sex benefits only after an amicus curiae brief was filed on behalf of a number of state legislators and conservative leaders from Texas. The brief urged the state's justices to adopt a "narrow" interpretation of the U.S. Supreme Court's marriage decision, namely that it "only held that same-sex couples had a fundamental right to marry."

The brief also minced no words in spelling out the possible political consequences if the Texas justices refused to revisit their earlier decision. "Judicial candidates, especially those in a party primary, campaign on the issues," it said. "They give their opinions on the political concerns of the day and pledge allegiance to their party platform. As we will soon see on November 8th — elections have consequences."

Anti-LGBT rights activists Jonathan Saenz, president of the conservative political group Texas Values, and Jared Woodfill, president of Conservative Republicans of Texas, were active proponents of filing the brief. Gov. Abbott, Lt. Gov. Patrick, and Attorney General Paxton also made statements condemning the Texas Supreme Court's September 2016 decision.

The brief was buttressed by a well-organized letter writing campaign and statements from Texan GOP leaders that directly referenced the re-election of the eight justices who originally dismissed the case. Participation in the letter campaign was encouraged by statements like this one, originally published on the website of the Conservative Republicans of Harris County PAC:

Email and call Justices Nathan Hecht, Jeff Brown, Eva Guzman, Debra Lehrmann, Don Willett, Phil Johnson, Jeffrey Boyd and Paul Green and let them know how terribly disappointed you are about their refusal to review this case. Tell them that we elected them to stand up for our religious liberties and our Tenth Amendment Constitutional States' Rights, rather than caving into the homosexual political movement. We, the taxpayers, should not have to subsidize someone's immoral behavior. Let them know that you will remember this decision the next time they come up for election. Let them know that their actions have consequences.

"This decision is political and is an example of why elected judges are bad for LGBT people and bad for judicial independence," said Eric Lesh, director of the Fair Courts Project at the LGBT group Lambda Legal.

Election money in play

This is not the first time elected judges have been threatened politically for ruling in favor of LGBT rights. Three Iowa Supreme Court judges who voted in favor of extending marriage rights to same-sex couples were unseated in 2010 after a million-dollar anti-retention campaign that branded them as "liberal, out of control judges."

The Texas Supreme Court has come under scrutiny in the past for political influence in judicial decisions. A 2012 Stanford study into the effects of various judicial election systems found that Texas ranked among the three states with the highest correlation between supreme court justices' ideological values and those of their campaign contributors.

Texas Supreme Court Justice Devine — the only one who had stood against benefits for same-sex spouses in the court's first hearing of Pidgeon v. Turner — counts the PAC Texans for Family Values as his top campaign contributor. In 2012 alone, Devine received nearly $50,000 from the group, which opposes expanded LGBT rights.

Texans for Family Values has been the second-largest single contributor to judicial candidates over the last two decades and has spent $170,000 on campaigns for judges and state legislators in the past six years.

In 2014, the PAC gave $5,000 to Joe Pool Jr., an attorney in private practice who unsuccessfully challenged incumbent Justice Hecht. Pool had openly questioned whether the Texas Supreme Court was adequately conservative and charged it with "messing with the Constitution."

Both Justices Lehrmann and Green faced close primary races in March 2016. Lehrmann's challenger, Michael Massengale, received $25,000 in support from Empower Texans, a conservative 501c4 nonprofit. Massengale narrowly lost with 48 percent of the vote. Green's challenger, Rick Green, was funded primarily by individuals and received almost 48 percent of the vote.

Justices Willett, Devine and Brown face re-election in 2018. And with today's increasingly high-dollar campaigns, even judges who would prefer to avoid partisan groups must seek their support in order to keep their jobs.

Mounting calls for change

Texas Supreme Court justices have themselves expressed concern over increased political influence in the judicial selection system.

"The problem with the current system of selecting judges is the money that is required," Justice Green, who has served on the court since 2004, told the Dallas News editorial board in September 2016. "Most people think that the system is corrupt, that judges' decisions are affected by political contributions. For that reason alone, the system ought to be changed."

And Justice Lehrmann has lamented the partisan nature of Texas' judicial elections. "In large urban centers, many good judges are unseated simply because of their party affiliation," she told the Dallas News.

Wallace Jefferson and Barbara Pariente, former chief justices of the Texas and Florida high courts respectively, discussed the corrupting influence of judicial campaign finance in a 2015 Dallas News op-ed. Despite having been appointed by governors of different parties, the two shared similar concerns.

"Our judiciary, unlike the executive and legislative branches, must be insulated as much as possible from politics and campaign cash," they wrote. "In states with partisan elections of judges, we urge robust disclosure laws so that voters can know who spent money to help put a judge on the bench."

For Jefferson, Pariente, and other advocates of increasing court independence from political pressure, the answer lies in overhauling the way judges are selected.

Merit selection, which puts the appointment of judges in the hands of bipartisan or nonpartisan panels, would allow judges to "work without fear of reprisal for rulings that comport with the law" and "reject attempts to make the judicial branch succumb to partisan interests," as Jefferson and Pariente argued in their op-ed. Nonpartisan elections or publicly financed judicial elections may also alleviate judges' partisan burdens.  

"Unless we act now," Jefferson and Pariente concluded, "the harm to America's courts may prove irreparable."