The Supreme Court recently agreed to hear a challenge to Mississippi’s new abortion restrictions, setting up the possibility that the Court could re-think Roe v. Wade. That announcement cast a spotlight on a bill introduced recently by Massachusetts Senator Ed Markey called the Judiciary Act of 2021 which would increase the number of justices on the Supreme Court from nine to 13. Supporters used the specter of an imminent reversal of Roe to build enthusiasm for the measure, while Republicans – labeling the bill as the sort of “court-packing” proposed by FDR as a way to counter a Supreme Court that had blocked parts of his New Deal in 1937 – screamed bloody murder:
Minority leader Kevin McCarthy tweeted “Packing the court goes against everything we believe as Americans.”
Not to be outdone when it comes to escalating hysteria, Senator Mike Lee upped the ante: “Packing the court is an act of arrogant lawlessness. Those behind this effort spit in the face of judicial independence.”
Senator Tom Cotton said on Fox News, “I can assure you the Republicans would never propose a change in the composition of the Supreme Court simply because we didn’t like the way a court had been ruling in recent years.”
Meet Texas Senator Joan Huffman, devout Republican and author of Senate Bill 1529. Because Texas Senate Republicans don’t like the way the 3rd Court of Appeals has been ruling, they voted – not just to pack an existing court – but to create an entirely new one, with good Republican judges who can be counted on to deliver in so-called “cases of statewide significance.”
Texas currently has 14 courts of appeal scattered around the state. Victoria County is served by the 13th Court of Appeals, located in Corpus Christi and Edinburg. The justices of these courts are elected by the residents of the counties in the districts they serve. Each court hears appeals from lower courts in those counties, as well as appeals transferred around among the districts to level out their respective workloads.
Unsurprisingly, Travis County is where many cases originate in which the state, a state agency, or a state official is a party. The 3rd Court of Appeals, sitting in Austin, hears and decides the lion’s share of appeals in those cases. Senator Huffman’s bill puts a stop to this, creating a new appellate court called the “Texas Court of Appeals” and giving it exclusive jurisdiction over appeals in those cases. Her rationale? Existing courts have “varying levels of experience with the complex legal issues involved in cases of statewide significance,” leading to “inconsistent results.” That’s odd, given that the 3rd Court has been hearing these appeals since 1892.
Of course, this is just a fig leaf for the fact that Republican senators don’t like the way the current judges rule. Because Democratic-leaning Travis County is within its district, five of the six sitting justices on the 3rd Court of Appeals are Democrats. Since all of the justices on Huffman’s new court would be elected in statewide elections, it’s a dead cinch they’ll all be Republicans, just like all other statewide elected judges in Texas.
There’s no daylight between the motivation of progressive Democrats to back Markey’s bill and that of mainstream Texas GOP senators to vote for Huffman’s. The good thing is that neither will become law. Huffman’s bill didn’t get a hearing in the House, and Markey’s isn’t supported by Speaker Pelosi or President Biden; moreover, with the filibuster, it hasn’t a chance in the Senate. Speaking at Harvard Law School in April, Justice Stephen Breyer addressed the impulse behind legislative efforts like these, which he blames on a growing perception that judicial decisions are driven primarily by politics.
This perception, he argues, threatens our carefully balanced system. Lacking either the “power of the purse or the power of the sword,” the judiciary branch’s authority rests entirely on the public’s trust that courts will be “guided by legal principle, not politics.” And since that trust is the only reason people are willing to obey the Court’s rulings, he concludes that “structural alteration (of the Court) motivated by the perception of political influence can only feed that perception, further eroding that trust.”
Both SB 1529 and the Judiciary Act of 2021 offer exactly that sort of corrosive “structural alteration.” Good riddance to both.