Declarations:The Coverage Opinions Interview With Justice Don Willett Of The Supreme Court Of Texas

Vol. 3, Iss.8
May 7, 2014

“Today’s forecast: Party sunny with ZERO % chance of legislating from the bench.” “Agree 100%. Must be mortifying to have ‘Washington’ in your name ==> ‘Harry Reid Calls On NFL To Rename Redskins.’ (cite to Politico story).” These are just two of over 10,000 tweets from @JusticeWillett, a.k.a. Don Willett, Justice of the Supreme Court of Texas.

Anyone can send a lot of tweets. But more than just being active on Twitter, Justice Willett has over 5,500 followers. That’s a serious number. Not everyone can do that. Justice Willett says that he is probably the most avid judicial tweeter in America. And some have labeled him the most interesting public official on Twitter (which he says is “a bar so low it’s subterranean”).

If you think that it’s unusual for a Supreme Court Justice to be on Twitter, here’s something else that separates Justice Willett from just about all other high court Justices – he was age 39 when appointed to Texas’s top civil court. A master of Twitter and joining the Texas Supreme Court before 40 do not seem coincidental.

While an actively tweeting Supreme Court Justice may raise eyebrows now, Justice Willett (who also has a website and Facebook page) is an example of things to come. His use of social media provides a look into the future of the judiciary.

Justice Willett was kind enough to engage in a written Q&A for Coverage Opinions. I asked him about joining the Supreme Court at such a young age, Twitter, how much he enjoys coverage cases, the best way to spend a day in Austin and a few other things.

Speaking of insurance coverage, in the article that follows I set out 1,600 words making the case that Justice Willett is the most important liability insurance coverage judge in America. That is obviously a non-scientific conclusion. However, I believe that the article is well-reasoned and methodical in explaining how I reached that conclusion. At the time that I asked Justice Willett if he would do a Q&A, nor at any time prior to receiving his responses, did I tell him that I planned to write this companion insurance article.

His Bio

Justice Willett earned a triple-major BBA from Baylor University in 1988 and his J.D., with honors, along with an A.M. in political science from Duke University in 1992. After law school he served as a clerk to Judge Jerre S. Williams of the Fifth Circuit. Then, from 1993 to 1996, he practiced employment/labor law in the Austin office of Haynes and Boone.

From 1996 to 2000, Justice Willett was Director of Research & Special Projects for then-Governor Bush, and later was Domestic Policy & Special Projects Adviser to the Bush-Cheney 2000 Presidential Campaign and Transition Team. Other pre-judicial positions included: Special Assistant to the President in the White House, providing legal counsel on religious liberty and other issues; Deputy Assistant Attorney General for Legal Policy at the U.S. Department of Justice, where he played a key role in the President’s judicial selection and nominations process; and Deputy Texas Attorney General, serving as chief legal adviser to Attorney General Greg Abbott on the complete array of major legal issues confronting Texas.

In August 2005, Justice Willett, then age 39, was appointed to the Supreme Court of Texas by Governor Rick Perry to fill the vacancy created when Justice Priscilla Owen joined the Fifth Circuit. He was elected to a full term in November 2006 and again won re-election in 2012. His current term expires on December 31, 2018.

Judicial Experience: From None To An LLM

Noticeably absent from Justice Willett’s pre-Supreme Court resume is any judicial experience. But he turns this into a positive, stating: “There’s actually a good bit of academic research hailing how career diversity on collegial, multi-member courts produces more refined opinions. We’re all a product of our professional backgrounds, and my service in different branches of government on the state and federal levels perhaps makes me more attentive to building block principles like separation of powers.”

Not only did Justice Willett come to the Supreme Court with no prior judicial experience, or staff for that matter (Justice Owen’s staff went with her to the Fifth Circuit), but he was immediately thrown into the deep-end. When he arrived the Court was deadlocked 4-4 on several cases and waiting on his desk was a memo from the Chief Justice asking for his tie-breaking vote.

While several years have passed since Justice Willett’s trial by fire, he recognizes that there is still more to learn, telling me that in mid-May he’ll begin the Judicial Studies LLM program at his alma mater, Duke Law School. “My wife laments that one day I’ll have more degrees than a thermometer.”

He says that he hopes to emerge from the LLM program “with a broadened, more sophisticated approach to judging.” “I want to be receptive to smarter ways to tackle my job. If there are ways I can elevate the quality of my work, understand my role better, and perform my duties better, I want to embrace them. But even if I approach cases in largely the same way, I want that approach to be the product of rigorous examination, not rote repetition. Again, I want to be an exceptional judge, one with a sterling reputation for disciplined and top-tier analysis. I trust the LLM program will up my game.”

Twitter

Justice Willett says that he thinks he is “metabolically hardwired for the cloistered, contemplative, cerebral and ultra-nerdy life of Supreme Court judging.” That sure is a strange description for a (verified) Twitterer, with over 5,500 followers, probably the most avid judicial tweeter in America and who some have labeled the most interesting public official on Twitter.

After all, there is nothing cloistered about engaging in an activity that is designed to share your views with the entire world. And there is certainly nothing cerebral when those views must be expressed in 140 characters or fewer. But maybe that’s why Justice Willett enjoys Twitter so much and why he is so good at it. It may be the outlet that he needs, as an outgoing, people person, whose job is so solitary. Being a trial judge is a schmooze-fest. The same certainly cannot be said about sitting on an appellate bench.

Justice Willett came to Twitter in October 2009 and tweeted only sporadically until his 2012 reelection campaign ramped up. He says he tweets “mainly as a campaign communication tool. More and more people consume information online, especially political information. Bottom line: for someone who has to run for reelection in a state of 26 million people, it’s political malpractice not to engage via social media.” He also tells me that “people find it rare and refreshing for a Supreme Court Justice to step out from behind the bench and demystify things. Folks are surprised that stiff judges can be comedic, authentic and informative.”

But surely Supreme Court Justices aren’t allowed to tweet, you may be thinking. Justice Willett tells me that the Supreme Court has never told him no, not to mention that the ABA has declared it Kosher, stating as follows in Formal Opinion 462 (February 21, 2013): “Judicious use of ESM [electronic social media] can benefit judges in both their personal and professional lives. As their use of this technology increases, judges can take advantage of its utility and potential as a valuable tool for public outreach. When used with proper care, judges’ use of ESM does not necessarily compromise their duties under the Model Code any more than use of traditional and less public forms of social connection such as U.S. Mail, telephone, email or texting.”

But just because Twitter is permissible doesn’t mean that it doesn’t require care and attention. Justice Willett has some self-imposed rules for his Twitter use. “One cardinal rule: I don’t throw partisan sharp elbows or discuss issues that could appear before the Court. While I post links to U.S. legal news, I never give my $0.02 on disputed legal issues or pending cases. I strive to keep things witty, informative and interesting.” He says about Twitter: “Succinctness is the enemy of nuance. It’s tough to be precise in 140 characters, so conveying tone/nuance is tough. I just self-censor and try to be careful.”

Justice Willett’s tweets cover many bases. Some popular topics include, in no particular order, family observations, Texas pride, patriotism, religion, U.S. Supreme Court decisions, Texas Supreme Court events, his love for Blue Bell Ice Cream, sports, television, movies, holidays, politics, law school, news of the day and inane and obscure observations (often accompanied with photos) where his humor and wit really shines. Some tweets in the inane and obscure observations category are laugh out loud funny. If you are on Twitter you will not regret hitting the follow button for @JusticeWillett. If you are not on Twitter, this is a reason to get on board.

Justice Willett’s Record And The Preconceived Notion Of The Supreme Court Of Texas

In his comments announcing Justice Willett’s appointment, Texas Governor Perry called him a bright scholar and a strict constructionist who understands that the role of a judge is to interpret and apply the law and not create it from the bench. Here’s how things have gone since that day.

“Since 2005, I’ve forged a record of principled, evenhanded judging—a record hailed for its clarity, independence, and scholarship. From the day I joined the Court, I’ve been its most independent voice, writing more concurring and dissenting opinions than probably any other Justice. My judicial strike zone is consistent from case to case, no matter the parties.”

“While the Court is sometimes described as pro-business, that’s largely because we’re interpreting laws passed by a right-leaning, business-friendly Legislature.” “I have not flinched to apply the law to rule against companies owned by my biggest campaign supporters (Perry Homes v. Cull); to strike down as unconstitutional tort-reform laws I believed robbed plaintiffs of their constitutionally protected rights (Robinson v. Crown Cork & Seal); to protect a citizen’s right to present their claims to a jury (Del Lago Partners v. Smith); to uphold a family’s right for insurance coverage in a personal-injury suit (Tanner v. Nationwide). There are plenty more. I’ve written decisions that favor plaintiffs and decisions that favor defendants.”

“The judiciary’s legitimacy flows from its unbiased reliance on principle, its ability to deliver reasoned and dispassionate decisions. A court squanders that legitimacy when it stiff arms the law to reach wished-for policy outcomes. A judge, even a Texas judge who must run on a partisan ballot, must view the judiciary as insulated from popular will. Truth be told, the only meaningful check on a court’s power is really its own ethic of self-restraint.”

He doesn’t take well to a certain criticism directed to the Texas Supreme Court. “Critics of my Court believe that because we’re all Republican, we succumb to groupthink and march in ideological lockstep. That’s flatly, emphatically, laughably untrue—empirically, too. I co-presented a CLE a few years ago that looked at every case decided since the day I joined the Court. Roughly half the decisions were unanimous. No surprise there. As you know—even at SCOTUS, with their broad philosophical spectrum, many (if not most) cases are decided 9-0. What surprised people was that of the half of our decisions that were not unanimous, the most common vote split was 5-4. We had more 5-4 decisions than 6-3; more 5-4 than 7-2; more 5-4 than 8-1. Things get mighty feisty and spirited around our conference table, and Justices aren’t remotely bashful about expressing sharp disagreement. And unlike at SCOTUS, where Justice Kennedy is the ‘decider’ in most of their 5-4 decisions, my Court has no classic, predictable swing Justice. The data for SCOTX, as opposed to SCOTUS, showed enormous variety in voting patterns and no discernible alignment trends.”

Writing Style

Justice Willett writes in a conversational style and uses humor at times. This makes his opinions enjoyable to read. I asked him if there are any judges whose writing styles he has tried to emulate. He tells me that he hasn’t tried to emulate anyone, but aims to write readable, scholarly, jargon-free opinions that non-lawyers can understand. “I’m fluent in legalese but don’t want dense, ponderous prose clogging my work. I seek to marry down-to-earth writing with strong legal analysis—sprinkled with well-placed verve and amiable wit here and there. Like anyone, I enjoy Justice Scalia’s pyrotechnics, but I also really admire Justice Kagan’s conversational style.”

“I’ve received exceedingly high marks for my judicial writing, from lawyers on both sides of the docket and from across the political spectrum. I’m gratified that lawyers believe I possess a distinctive—and needed—voice on the Court, and apparently some CLE programs have focused entire presentations on my writings and how they impact the Court’s work.”

Here is one of my favorite passages from a Willett opinion: Dissenting in In re Reece, 341 S.W.3d 360, 378 (Tex. 2011), which, very generally, addressed whether a dispute belonged in the Supreme Court or Court of Criminal Appeals:

“Intrepidity at the Alamo; entering the United States as the Republic of Texas; fifty-eight Texas-born recipients of the Medal of Honor; Bob Wills and George Strait; Nolan Ryan and Babe Didrikson Zaharias; five Super Bowl titles (sadly none this millennium); Dr Pepper and the ‘little creamery’ in Brenham; deep-fried anything at the State Fair; a spirit of daring and rugged independence—the sources of Lone Star pride are innumerable.

Unfortunately, the juris-imprudent design of the Texas judiciary does not make the list. Today’s case is a byproduct of that recondite web, sparking a game of jurisdictional hot potato between us and our constitutional twin, the Court of Criminal Appeals. Truth be told—and this particular truth has been told repeatedly—the State’s entire Rube Goldberg-designed judicial ‘system’ is beyond piecemeal repair; it should be scrapped and rebuilt top-to-bottom.”

Insurance Coverage

Of course I had to ask Justice Willett about insurance coverage.

I asked him if he is aware that the Supreme Court of Texas is so influential on courts all over the country when it comes to its decisions on liability insurance issues? He diplomatically demurred on addressing coverage specifically and took a more macro approach to the question. “The Court fortunately has a well-earned reputation for scholarly legal analysis. Certainly, the Lone Star State, given our size and economic dynamism, has no shortage of business litigation, and the Court is mindful—and grateful—that our work exerts significant influence throughout the nation.”

Now I ask Justice Willett the make-or-break insurance coverage question: Does he have a spring in his step when he is walking to the courtroom on a day when there will be oral argument in a liability insurance case. “Hmm. I mean, ‘YES, of course I do!,’” he replies. “Liability insurance cases are consequential, with wide ripple effects that impact everyone, and it’s always gratifying to lend clarity in such an important area of the law.”

On Austin

Follow Justice Willett on Twitter and you quickly realize that his love for Texas is, well, Texas-size. He also takes pride in having lived, until recently, in Austin’s “way-cool” 78704 zip code – “the epicenter of way-left Austin funkiness.” Bumper stickers read: ’04—Not Just a Zip Code, a Way Of Life.

I asked Justice Willett what I should do if I had only one day to spend in Austin. He tells me to visit the Texas State History Museum, devour some choice BBQ at Franklin’s or Salt Lick, lounge at Barton Springs pool, enjoy some live music at Austin City Limits and some ice cream at Amy’s.

Looking Ahead

Justice Willet hopes for a long career as a jurist.

“Once upon a time, the Texas Supreme Court was a career capstone, a culmination, with people building long, distinguished legal careers before serving on the Court. More recently, the Court has become less a capstone than a stepping stone, a mid-career detour and catapult into other elected office, lucrative private practice or the federal bench. I’m more of an old-school throwback and would love to remain on the Court for decades to come (as long as I can keep getting re-elected and keep my family’s head above water financially). So quite simply, I want to build a long judicial record of excellence, of exceptional reasoning and analysis. I want to amass a record of distinction, meaning I must bring to my work as much incisiveness and intellectual discipline as I can muster.”

But if that doesn’t work out he tells me that serving as a university leader or law school dean would enable him to achieve the magic combination of doing what he loves and believing that it matters.

The Future Of The Judiciary

While an actively tweeting Supreme Court Justice may raise eyebrows now, Justice Willett is an example of things to come. Over time Supreme Court Justices are going to come to the bench having more and more social media experience. And as social media takes over, even more than it has, as the most popular form of communication, it seems inevitable that Supreme Court Justices, especially elected ones, are going to have no choice but to turn to this form of communication to interact with voters. Indeed, Justice Willett called it “political malpractice,” for someone who has to run for reelection, in a state of 26 million people, not to engage via social media. Surely this applies to those in smaller states as well. Justice Willett’s use of social media provides a look into the future of the judiciary.

One of the most famous quotes in music history comes from then-music critic John Landau who in 1974 said: “I saw rock and roll’s future and its name is Bruce Springsteen.” That quote kept coming to mind as I prepared this profile.

Copyright Randy Maniloff All Rights Reserved