A few moments ago, the networks called the Texas Senate and Governor races for the Democratic candidates. Those outcomes will get a lot of attention. But of significant interest will be the downballot judicial races in Texas.
This year, four of the nine seats on the Texas Supreme Court were on the ballot. Unless something unexpected happens, all four will lose: Chief Justice Jimmy Blacklock, Justice James P. Sullivan, Justice Kyle Hawkins, and Justice Brett Busby. These are all brilliant judges. Three of them clerked on the United States Supreme Court. Chief Justice Blacklock has been a strong leader, following in the footsteps of Chief Justice Nathan Hecht. But the qualifications do not matter. Everything was on the party line. The Texas Supreme Court will now have five Republican members and four Democratic members. One might expect a number of 5-4 cases for controversial cases. Then again, the Chief Justice is now the administrator of the state court system, which entails some important responsibilities.
The Texas Court of Criminal Appeals (the court of last resort for criminal cases) had three seats on the ballot. Again, unless something happens, all three will lose. There will still be a six-member conservative majority. I don’t see too much changing on that Court.
Recently, the Fifteenth Court of Appeals was created as a statewide constitutional court. Virtually all suits against the government are routed to that court. (Think of something like the D.C. Circuit.) All three members of that court were on the ballot. Unless something happens, all three will lose. The Court will now have 100% Democratic members. I would expect a lot mandamus suits to the Texas Supreme Court.
I haven’t had time to go through the returns from the local courts, but it appears that most of the incumbent republican judges will lose office. This will be an even bigger bloodbath than 2018, when the Beto wave wiped out nearly all of the Republican judges in Houston, Austin, Dallas, and other large cities. So much judicial experience for non-controversial judges will go down the tube.
The Governor of Texas is fairly weak, as compared to other states, but he does have the power to appoint new members of the Texas Supreme Court and other courts when vacancies arise. Recently, the Texas legislature created a new Texas Business Court. This court was designed to compete with Delaware. Many of the current Texas business courts are not likely to be reappointed. This election will significantly affect businesses that chose to make Texas their headquarters. Speaking of which…
The Texas Attorney General Race will also likely go to the Democratic candidate. I would suspect that all of the conservative strategic litigation cases brought by Attorney General Paxton will be dismissed. Indeed, it is conceivable that the new Texas Attorney General would not defend the Texas Ten Commandments Law if cert is granted. (The BIO will be filed soon.) The Texas Attorney General will also not bring original jurisdiction actions before the Supreme Court of Texas. Going forward, all of the strategic forums in Texas will be severely underutilized. The only court where the Texas Attorney General might file cases will be in Austin. I should note that one seat on the Western District of Texas remained vacant for two years, and will likely remain vacant. But beyond the strategic litigation, the Texas Attorney General will now be able to investigate all of the corporations that moved to Texas. There are a lot of them.
What about judicial nominees? Despite my best efforts, Judge Southwick will get the last laugh. Todd Butler will almost certainly be confirmed. But the Fifth Circuit will likely be a lot quieter, given the lack of Texas Attorney General cases. I also hope this means that Judge Rudofsky will get a vote, as that Eighth Circuit seat would remain vacant for the foreseeable future. Indeed, the Eighth Circuit may be the only viable forum for a Republican AG to bring cases starting in 2026.
What about Justices Alito and Thomas? They did what Justice Breyer could not–resist the pressure. I hope they live long and prosper.
Ultimately, I’m reminded of something I tell my students–we are never more than two years away from a midterm election. Despite threats about fascism and totalitarianism, the people are able to effect change.
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