Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.(1)
Texas Supreme Court justices are elected for six-year terms.(2) The elections are staggered, so that approximately three justices run for reelection every two years.(3) In 1945, the legislature amended the Texas Constitution to require the Texas Supreme Court to be composed of nine justices.(4) Due to the constant flux of justices, the high court provides a unique perspective on state constitutional jurisprudence. In addition, Texas is one of only two states, the other being Oklahoma, to have a bifurcated appellate system dependent on criminal or civil subject matter.(5)
This High Court Study explores the trends of state constitutional adjudication at the Texas Supreme Court between 1989 and 1998.(6) Part II discusses the individual justices, terms served, political affiliations, and philosophical views.(7) Part III examines the high court's methodology for deciding issues implicating both the Texas and Federal Constitutions and discusses the historical background of the freedom of speech, the due course, and the equal protection clauses of the Texas Constitution.(8) Part IV is divided into two substantive sections: (1) freedom of speech and right to privacy,(9) and (2) equal protection and due course.(10) By examining divided decisions in these areas from 1989 to 1998, the justices' individual methodologies with respect to state constitutional adjudication, as well as stances on substantive issues, will become apparent. Finally, this Study concludes that while the Texas court in the mid-nineties was predominately independent and protected individual rights, the court today relies primarily on federal constitutional case law of the U.S. Supreme Court, demonstrating the Texas court's movement away from independent state constitutional adjudication.
THE TEXAS JUSTICES FROM 1989-1999
In 1987, Chief Justice Thomas R. Phillips, a Harvard Law School graduate, was appointed to the Texas Supreme Court by Governor Bill Clements to replace retired Chief Justice John Hill who resigned in the middle of his term.(11) Chief Justice Phillips is a Republican who previously sat on the Harris County District Court.(12) After his interim appointment to the state's high court, Chief Justice Phillips was elected in 1988 to serve the two-year remainder of Chief Justice Hill's term and was reelected in 1990 and 1996.(13) Chief Justice Phillips is only one of the two justices from 1989 remaining on the court today.(14)
In addition to Chief Justice Phillips, five other justices were elected to the Texas Supreme Court in 1988: Nathan L. Hecht, Lloyd Doggett, Raul A. Gonzalez, Eugene A. Cook, and Jack Hightower.(15) Justice Hecht, a Republican, was elected to a six-year term after serving on the appellate court in Dallas from 1986 to 1988.(16) In addition to Chief Justice Phillips, Justice Hecht remains on the court today.(17) Justice Doggett, a Democrat, was a practicing attorney in Austin and a state senator from 1973 to 1984.(18) Justice Gonzalez, a Democrat, was elected to a six-year term after his interim appointment to the high court in 1984.(19) Before serving on the court, Justice Gonzalez sat as an appeals judge and a trial court judge and was the "first Hispanic to be elected to a statewide office in Texas."(20) Justice Cook, a Republican, was also appointed in 1987 by Governor Clements and was elected to serve the remaining four-year term in 1988.(21) Finally, Justice Hightower, a Democrat, was elected over Governor Clements's interim appointee.(22) Before election to the Texas Supreme Court, Justice Hightower served in the state senate and as a United States representative.(23) In addition, Oscar Mauzy, Franklin Spears, and C.L. Ray, all Democrats, completed the nine member composition of the court in 1988.(24) Justices Ray and Mauzy were generally considered pro-plaintiff and Justice Spears voted at times with the Republicans on the court.(25) In 1988, the court consisted of six Democrats and three Republicans.(26)
In the 1990 election, Justices Spears and Ray decided not to run for reelection.(27) Bob Gammage, a Democrat who sat on the court of appeals in Austin, and John Cornyn, a Republican state trial court judge, each won a seat on the high court that year.(28) Justice Cornyn's success shifted the number of Republican seats on the high court from three to four.(29)
In the 1992 election, the first woman was elected to the Texas Supreme Court. Rose Spector, a Democrat and former state trial court judge, defeated incumbent Justice Cook.(30) In addition, Justice Mauzy was defeated by Craig Enoch, a Republican who sat on the court of appeals in Dallas.(31) This election, however, did not change the Democrat/Republican ratio of justices on the court.(32)
In November 1994, the Democrats on the state's highest court lost their majority and the Republicans gained the majority for the first time since the 1870s.(33) Justice Doggett, a Democrat, resigned to pursue a legislative career,(34) and Priscilla Owen, a Republican, won the election.(35) Justice Owen's victory tipped the court's composition from four to five Republicans, giving the Republicans a majority on the Texas high court.
In 1995, both Justices Hightower and Gammage, retired providing Governor Bush with the opportunity to make two Republican, interim appointments, Greg Abbott and James Baker.(36) Both Justices Abbott and Baker were state trial court judges before being appointed to the state's highest tribunal.(37) As a result of these interim appointments, the Democrats were left with only two justices on the Texas high court.(38) The 1996 election did not change that partisan make-up.(39) In 1997, Justice Cornyn resigned and Governor Bush made his third interim appointment, Deborah Hankinson.(40) Justice Hankinson, a conservative Republican, served on the court of appeals in Dallas before her appointment.(41)
In 1998, however, Democrat Justice Gonzalez announced his retirement(42) and Democrat Justice Spector lost her reelection bid to Harriet O'Neill, a Republican appellate court judge.(43) Governor Bush made his fourth interim appointment, Al Gonzales, a Republican with no judicial experience.(44)
In a mere ten years, then, the court shifted, not only from a Democrat to a Republican majority, but was left with no Democrats on the state's highest tribunal. Undoubtedly, the brief six-year terms and ensuing opportunities for gubernatorial interim appointments resulted in the shift to Republican power which may well have had, and will likely continue to have, an effect on the court's state constitutional adjudication. Indeed, a change in the court's political and jurisprudential ideologies is apparent when comparing court decisions decided before 1995, when the Democrats had the majority rule on the court, with those decided after 1995, when Justice Doggett resigned and the Republicans began to enjoy a majority.(45)
METHODOLOGY FOR ANALYZING TEXAS CONSTITUTIONAL ISSUES
As a reaction to the Depression, the 1930s nurtured the growth of the federal government, federal agencies, and federal laws.(46) Federal courts, however, dealt with federal issues and state courts dealt with state issues.(47) States, for the most part, based decisions on state law, ideals, and values. With the emergence of federally protected fundamental rights in the 1950s and 1960s, however, a shift in constitutional adjudication from state independence to federal reliance began.(48)
In 1983, the U.S. Supreme Court, in Michigan v. Long,(49) reiterated the doctrine that when a state court decides an issue on "an adequate and independent state ground" the Court would not review the decision.(50) States courts were directed to make state constitutional bases clear and explicit or risk judicial review by the Supreme Court. As justices of the states' high courts increasingly resorted to examining their constitutions in conjunction with, or independent of, the Federal Constitution, academics fit the state court approaches into four models: primacy, interstitial or supplemental, dual sovereignty, and lockstep.(51)
When a state court looks to its own constitution as the primary basis for adjudication before the Federal Constitution, the court uses the primacy model.(52) A court looks to many things such as the history and text of the state constitution, the ideals of the people, and case law to determine whether the state constitution has been violated.(53) Once the court examines its own state constitution, it then looks to the Federal Constitution to ensure that the state constitutional ruling does not fall below the "minimal rule for a diverse nation" set by the U.S. Supreme Court.(54) A court that uses the primacy model heeds Justice Brennan's call that "state courts no less than federal are and ought to be the guardians of our liberties" by extending protections "beyond those required by the Supreme Court's interpretation of federal law."(55)
As a contrast to the primacy model, some courts use the interstitial or supplemental model to examine constitutional issues.(56) Unlike the primacy model, a court using the interstitial approach, looks to the Federal Constitution and federal cases to resolve the issues before looking to the state constitution.(57) The court, therefore, begins its analysis with a virtual presumption that prior federal decisions are dispositive, and uses the state constitution for supplemental analysis.(58)
Another approach is the dual sovereignty model, where a court looks at the federal and state constitutions together to make a constitutional determination.(59) The dual sovereignty model represents a process by which a court analyzes issues under both the state and...