Texas Supreme Court Justice Evan Young’s career has taken him many different places—the United States Supreme Court, Iraq, and now the Texas Supreme Court. Join Todd Smith and Jody Sanders as they host Justice Young for a discussion of his path in the law and his transition from practitioner to judge. Justice Young provides a unique, behind-the-scenes perspective on the Texas Supreme Court and its operations. He also discusses potential changes in how the Court handles petitions for review—including granting a petition before requesting merits briefing—that will impact the approach advocates should take.
Listen to the podcast here:
Potential Changes to SCOTX Petition Practice | Justice Evan Young
Our guest is Justice Evan Young from the Supreme Court of Texas. Welcome to the show, Justice Young.
I am glad to be here. Thank you for having me.
We have been blessed to have several of your colleagues now from the Texas Supreme Court come on, and we are thrilled to have you for a number of reasons that we will get into here shortly. Will you give a little bit of background on yourself and tell folks about yourself?
I would love to be a native Texan. Unfortunately, I was born in what might be called far, far West Texas, which some people call Arizona. Although now that I am a Texas statewide official, I am going to prefer that first description of it. That is because my dad was in the Air Force and one does not have much choice about where one is born generally, especially when you are an Air Force kid or any military family’s kid.
He had been an Air Force kid and had lived in Texas when he was a kid back in the ‘50s and ‘60s a couple of times, and he always said, “I am going to try.” The Air Force does not give one complete control over where you are going next. He said, “If I can get to Texas, if I can stay there past the twenty-year mark, and if they tell me I have to leave, then that is where I will draw the line.”
That is what happened through the grace of God, I like to think. San Antonio became our family’s hometown by virtue of him being transferred to Brooks Air Force Base. He was there for a good long while. It is where I learned a lot of great things about life. My two younger sisters grew up there. That is where they mostly remember. I can remember places before that. They said, “Time to go to the Pentagon.” He said, “It has been great, but I think we will stay here.” That is how I have been a San Antonian by my parents’ choice of saying, “This is where we want to stay.”
I am so grateful to them and the Air Force for getting us there. I went to Tom C. Clark High School. I loved it. I still enjoy seeing people from there. In fact, I am going to be in San Antonio and will get to see one of my old teachers, who has been a friend for all of these years and has helped out with my campaign and been a supporter since the early 1990s. That is an amazing thing to be able to go back to, even though San Antonio is not my home anymore.
How old were you when your family moved to San Antonio?
I was in my early mid-teens. I was able to finish high school there, like maybe 14 or 15. I remember enough about it that it made a difference to me. I think it is a good thing in a lot of ways. I describe to people how coming to Texas, I saw more Texas flags in my first week of being here than I had seen of all other state flags put together in the entire rest of my life up to that point.
That was a striking thing. It is not surprising to Texans to hear that, but wouldn’t it be better if other states also maintained a deep connection? I am not saying that no other state cares about its own heritage. There is no other state that does as much as Texas does. In many states, it is almost an afterthought.
I think that is a shame. Every state has an amazing heritage and history. Their traditions, cultures, and law is not just an amalgamation. I wished that there were other places that I had seen a lot more state flags than I did in Texas. The fact that coming here, I saw, in so many different ways, ranging from those flags to the names of every business, Lonestar this, Alamo that, etc., a deep connection to the fabric of the state and its history and its heritage was a very moving thing for me.
I have always been interested since I was even a much younger kid in history, geography, government, politics, and all the rest of it. Seeing that and not just being words, but in every conceivable way, people feeling like they were Texans, helped to make me want to become a Texan many decades ago. That is why I decided to come back. I went off to Duke for undergrad. I went to Yale Law School. In between those, I did a couple of years and got a degree at Oxford.
It is called Modern History, but in Oxford, Modern History is anything after 410 with the Romans and 18th-century British constitutional history in the larger subset was modern history. I got the chance to clerk first for Judge Wilkins, some of the 4th Circuit, then Justice Scalia. It was the best job I will ever have. This new one is pretty good, but spending a year with Justice Scalia is hard to top, to be honest. I worked at the Department of Justice for a few years.
The better part of one of those was in Iraq, doing Rule of Law work there. My wife and I got married in November 2008, and that was the big decision point. It was an easy decision for us. We wanted to come back here, and that is only because Texas made such an impression on me all those years that it did not even seem like a question. I want to come back to Texas. This is where I want to work.
I had the chance to go to a lot of different places. I came to Austin. It is closest to San Antonio. I had a lot of great big firms at that time that could allow me to do work that involved US Supreme Court work, but also Texas work. I got a chance to go to Baker Botts and work with Tom Phillips. I picked that firm largely. I thought, “I want to come and learn how to be a Texas lawyer.”
I had graduated from Yale Law School. I had worked for two Federal judges. I had been in the Department of Justice. I want to be a Texas lawyer, “How am I going to learn how to really be a Texas lawyer with that background?” I thought, “How better to do it than by working with the guy who had been the Chief Justice of the Supreme Court for the better part of two decades?” I hit it off with him and have learned from him. I am still learning from him. That explains why we ended up where we are. It is hard to believe it has been as long as it has been since we came back in early 2009 to Texas.
I do want to ask you. You mentioned something about doing Rule of Law work in Iraq. Tell us about that because you think about the military role there, but can you expound on what that was?
It was a great privilege. The Secretary of State had asked the Attorney General to head up one section in the US Embassy and then in all of the consular locations across the country. That was the Rule of Law section, which most embassies do not have. Most embassies have political sections, economic sections and public diplomacy. They had all of those things. In a few embassies, they also have a Rule of Law section. Our job was to be the diplomatic liaison to the parts of the Iraqi government that had direct oversight over the legal system.
For example, I spent several hours every single week with the Chief Justice of Iraq, whose name is Medhat al-Mahmoud. He is probably in his late 80s or early 90s if he is still alive. He was in his early 70s then. I would even say he was a wonderful saintly man who was doing his very best to bring to the beleaguered people of Iraq the most honest Iraqi legal system he could.
One of the problems that Americans had had, we came in and essentially occupied that country. We are trying to do good work in the Rule of Law arena, but what does that mean? There were so many well-intended efforts to teach the Iraqi judges how to do a jury trial. That is not their system. It is not the case that something that is a good Rule of Law system is one that must have juries, necessarily. It is much more complex than that.
The real goal was to try to give the Iraqi judges the tools they needed as well as the police and the prisons, the other main components of the Rule of Law mission, to be the best Iraqi system that they possibly could. I would spend several hours every week with him. We would talk about information that the American side had gotten about various problems.
He would tell us about people that perhaps have been detained that maybe were not within their jurisdiction. We worked on building courthouses together. We talked about judicial security efforts and the amnesty issues that were raging. We talked about making sure that the constitution was being respected, what the processes would be for it to be modified if necessary, and how to instill confidence in the people in those ways.
I will give you one little story. I share this all across the State Law because it was deeply meaningful to me. It starts off in a way that is quite poignant. When the United States entered Iraq, the first thing they learned, and it took a little while to truly figure this out, was that the Rule of Law is predicated on a number of things, but one of them is just the most basic thing imaginable. That is judicial security. Whenever the Iraqi courts would do something that was contrary to the interest of various terrorist organizations, what do you think happened to that judge? There were assassinations galore and fire bombings.
The first day I spent in Baghdad, I met a judge whose home had been firebombed the week before we got there. Luckily, none of his family nor he himself was not in the house at the time but he lost everything. We did our best to try to restore that. There were a lot of judicial assassinations, “I am not going to set free these terrorists. I am not going to release this money.” “Here is the consequence,” which, as you can imagine, is terribly corrosive to any sense the judges were independent. The American government built a compound within the green zone for judges in the Central Iraqi region to live in.
That brings me to Chief Justice Medhat. I’d often see him walking in the green zone, which was very secure at that time, hand in hand with his little grandson who was about four. It was only ever those two generations that would do it. The reason for that is that the year before I got to Baghdad, the terrorist cell captured the Chief Justice’s only son. They tortured him and mutilated him. They murdered him. They dumped his body on the street in front of the Chief Justice’s house as a means of intimidating and punishing and disincentivizing him from doing what he had been doing.
As you can imagine, it was devastating. Can you imagine that yourself? It is hard to. I was not a parent then, but I am now. It is hard to do anything other than shiver when I think about it. He was devastated and he was heartbroken, but he did not give up. He did not give in and kept on doing his job the best he could. There was only one time he had even referred to it when talking to me. It was hard for him to talk about, as you can imagine. He is a dignified man, which is just a wonderful example of what could be.
To me, the idea that something like that could happen came as a bit of a shock. We have seen examples in this country of people doing that, not to the systematic degree that there was in that country, but it taught me that the Rule of Law requires an awful lot of input and a lot of maintenance. The idea, to me at least, is that we have to safeguard it and preserve it and not assume that because we have had it, it will be there in future years and whatever problems people might have with the legal system, we should fix them.
We try to make improvements, but the idea that we would not gladly do what we can to make sure that our system maintains the vitality that it has and honors the promises of the past and is there for future generations is something that my own experience tells me, “We cannot do it. It is fragile. It is a lot easier to tear apart than it is to build up.” I want it to be there for my little six-year-old daughter and one day for her children, which means that this generation has to do what prior generations have done and step up and do the best that we can, just as people like Chief Justice Medhat did in Iraq at a great cost to himself.
We could spend the whole time just talking about your experience in Iraq. Thank you for sharing that with us. From your self-introduction, there is a lot of other information to unpack in there. We would love to just dive straight into that. I will ask to get us going. We heard a little about your clerkship experiences, but up until that point had you already developed an interest in appellate law, specifically? How did that come about?
I had and I do not really know exactly the answer, but I am one of those weird guys that has always known that he wanted to be a lawyer. I cannot remember a time in which I did not. It was not a big struggle in college or deciding whether to go to law school or something else. It has to do to some extent with that interest I described to you in history and in the nature of government, how authority is distributed, and how liberty is protected.
For example, my dad had been stationed at Andrews Air Force Base before we came here. The summer before he started there, he was at a place called Fort Belvoir in Alexandria. Our school year stopped. I had just finished sixth grade. Immediately after that, we joined him up. That is Alexandria. I have two sisters, one of whom was very young at this point, almost a baby, a toddler. My younger sister is three years younger than I am.
My mother would just take us into DC every day. We would get on the Metro and we would go. We would see things and she would pack little sandwiches in her purse and carry box drinks because it was very expensive to buy things at restaurants. We would see all the wonderful things there are. I made them go to the Supreme Court at least once a week, sometimes more. I saved up my little money and I bought some pictures of justices and things like that at the Supreme Court Historical Society gift shop, which is a wonderful thing in the Supreme Court building itself.
I don’t know if I should be revealing this about myself, what kind of a weird finishing sixth-grade guy would save his money to buy pictures of the Supreme Court and Supreme Court justices. I got an invitation to join the Supreme Court Historical Society a couple of months after that. It was like, “You have spent so much money here and spent so much time here, you should probably consider joining.”
I did and I think I might be the youngest person ever to join the society as a full member. I have always been interested in the Supreme Court and the idea of a judicial system and the role of the appellate courts in our society. I do not know what that says about me, but it has been a constant and sustained interest now for many decades.
I do not know too many young people that want to go to the Supreme Court with some regularity. It does seem like it was fated, wasn’t it? That is incredible. After you finished up at Yale, did you go straight into your clerkship with Judge Wilkinson?
Yes. In fact, he makes his clerks start in June, so it was immediately after graduation. I had one month. I went and worked at a law firm for a month just to earn some money. I could not take the bar. It was too quick. He did that because a lot of his law clerks would end up going to the Supreme Court. Supreme Court law clerks start in sequential weeks in July. One Friday in July, a clerk will leave the next Monday, the following Monday, a new one will come and it takes the whole month of July to get them, which is a great system. It is the quieter period, generally. It allows the clerks to have a nice transition where you are absorbing from your predecessors and predecessors in other chambers too.
It is a relaxed time. They show you how to write cert pool memos. They give you their war stories, “Here is what the justice likes and does not like.” You have this changeover and by the end of July, it is now the whole new group has started. There was no time to do anything after graduation because Judge Wilkinson did not want to be without clerks for a couple of months. He made all of his start in June. I was the last of his to start, I think. I started June. It was the day that hominy came down. I started at 9:00 and at 10:00, my judge was reversed by the Supreme Court of the United States in a decision. An unusual first day of work, I might call it that way.
Did you have to take the bar while you were doing your clerkship with him?
I did it after the clerkship. Justice Scalia had me start immediately. It was pretty intense. The advice that I was given was, “Extract everything you can and give everything you can to your clerkships and do that right afterward.” That is what I did. The studying of the bar, probably we all study far too much for it, but the stakes are high and the stress that would be imposed in trying to finish up a term at the Supreme Court and also take the bar exam was a bit much. That is how it worked and it was fine.
That leads us straight in then to your time clerking for Justice Scalia. We have had a few former US Supreme Court clerks on before, including Justice Busby, your colleague, and they all just speak so highly of the experience. I assume that was consistent with your own personal experience. I can only imagine what that must have been like.
It was truly a golden year in my life. I will be forever grateful to Justice Scalia for picking me. Especially as I realized how unlikely it was, not to say that there is anything particularly wrong with anybody he picks, it’s just that there so many right choices that anyone is unlikely. The statistical odds of being the one are low. There is no such person I think that comes in like, “This person must be a Supreme Court clerk.” It is, “This person is among a large group of people that could be.”
To be chosen from it is a tremendous honor because it gives you access to the highest court in the country for a year to be 1 of 4 law clerks to a justice. It is a very small staff, the justice, two secretaries, a messenger, and the four law clerks. That is the whole staff of the US Supreme Court justice. We spent a lot of time with each other, with the justice, and with the other law clerks. Our year was very interesting because I came in October 2005.
When I started, Chief Justice Rehnquist was there. He was very sick, but he was there. Justice O’Connor had announced her retirement just before I started. We had a nomination that came of Judge John Roberts to become Associate Justice Roberts that was pending. In early September, Chief Justice Rehnquist died. I saw him at the court. He was working up until the very last day. I can promise you on things. The president made nominations of Harriet Myers and then eventually Justice Alito.
I had a period with Rehnquist and O’Connor and then a period with Roberts and O’Connor and then with Roberts and Alito. There were three different courts during my term. We had finished the second-longest period in Supreme Court history of a changeless court. Justice Breyer is leaving office. He was the second-longest holder of the junior justice position in Supreme Court history. From 1994, when he became a justice until Justice Alito came on, he was the junior justice. It was the second-longest period of an unchanged court, which ended only when Chief Justice Roberts took the job.
As the junior justice now on my court, I can identify with that. Although I think we had it easy compared to them. All of our staff attorneys and law clerks sit in our conference. I tried to do that at the very beginning, go up and let other people in, but it turns out they have people there to do it. Justice Breyer had seen this court and the only court he had known for his whole time, and then suddenly, all this changed.
It made it for a very interesting term, but it also made it largely for a Pacific term. There were some very hotly contested cases, but nothing like this term, for example. The justices and the law clerks got along. There was, to some degree, an era of good feelings with new people coming on, a honeymoon period, perhaps. It was truly a wonderful place to work. I learned a lot of things that I have kept with me and all that talk about Justice Scalia and Justice Ginsburg is true.
They really loved and respected each other. They fought in the papers and in the decisions like cats and dogs. They both would bring to bear the best arguments they could to try to attack the other’s positions in most of the important cases, but they did it with respect and they acted with such collegiality and cordiality. They spent New Year’s Eve together with their families every year, which you only would do if you genuinely like someone.
It is not an act, in other words. To a large degree with all of the justices, they really did like each other, even though there were many that they probably thought they would never agree with or they did not think much of their methodology. They did not treat each other with a contempt that it would be easy to imagine that they did.
Most law clerks came into the court prepared almost to hate some of the justices that would fight their justice, “We are knights for King Arthur. We will go off into battle.” We realized that is not the way that the justices think about each other. They like each other. They respect, honor, and admire each other. They call each other up for advice about something, even if they are on the other side of a case sometimes. I saw that happen. It taught me that if at the top of the profession, the people who have the highest stakes jobs with the most stressful and intense decisions that have to be made in the legal profession can nonetheless regard each other with that respect, there is no reason why the rest of us can’t.
We are seeing all of this discussion. It is heavily in the press, “Are they treating each other with contempt?” We have this leak, which is terrible, something that Justice Scalia foresaw but certainly gave us strong incentives not to participate in a direction to. I do not know what it is like. I am hopeful that this is, to some degree, an exaggeration that fits a narrative that may be clickbait. I do think that despite all of this turmoil, and it is a momentous term and the stress that must be caused by the cases, let alone with that leak, is enormous, they are mostly doing things the same way they always have done them.
They are getting their opinions. We were just seeing them. It is the last day of the term. They will go off. It is a good thing that the Supreme Court has a summer recess. They go off and teach in Austria or stay at their home in Maine. When they come back, restored and recharged, they realize that these are the people that will be their colleagues for the rest of their lives.
They do have an in-built ability to be able to move on to the next case and perhaps to other human beings, perhaps have some resentments about this or that. Nonetheless, these are their lifelong colleagues and they make it work. They certainly did then. It was not hard. They seemed to really enjoy each other. I was glad to see that firsthand because I am not sure I would have believed it, you might not believe me, but it honestly is true.The rule of law is predicated on a number of things, but one of them is just the most basic thing imaginable. And that is judicial security. Click To Tweet
That definitely gives some perspective for us to be reminded they are lifetime appointments and you do have to work with this person. It is like any other office environment. You are stuck with them for life. I always do enjoy hearing the stories about Justice Scalia and Justice Ginsburg. It is good to know that was your experience observing that firsthand. You finished up your clerkship with Justice Scalia. I know you spent time at the DOJ. I assume that was immediately after that.
Yes. The Attorney General then was a former Texas Supreme Court Justice, Alberto Gonzales. He was restoring a tradition that the Attorney General in the early Reagan administration had of taking one US Supreme Court clerk into his private office. Judge Gonzales, as we call him, had a very small legal staff and he had 114,000 employees that he was responsible for. You think about all the different components in the Department of Justice, not just the US attorney’s offices and main justice, but the FBI, the DEA, and all the rest of it. His own private, personal staff was usually 5 or 6 lawyers.
The invitation to me, which I was honored to get, was you have to be one of them. You would be the junior guy, “Come in and we expect you to be here for a year,” but you will see how it works. You have just come in from the Supreme Court. You have seen how that works and then off you go to do other things.
I am like, “How can I resist that? Somebody from my home state, who is the Attorney General, and to be able to be in that room every single morning, as he is getting briefed on the most important issues of the day. I get to hear the conversations about what matters to the Department of Justice and how it all works. What a tremendous opportunity.”
Various things happened. It is an unfortunate thing. By the end of that year, I was the longest-serving lawyer in the Attorney General’s office. The Attorney General himself resigned. The administration and Congress parties were not aligned anymore. There were a lot of attacks. Attorney General Gonzales decided to step aside and allow a new Attorney General to come in and hopefully deflect from all the time and energy spent on this US attorney’s firing scandal.
I stuck around on the theory that, “I do not know very much. I do not have very much memory, but what there is, I have got.” I will stick around and try to help with the transition to the acting Attorney General, Peter Kaiser, and then to the new Attorney General, Michael Mukasey. Both of them are wonderful guys.
Judge Gonzalez had talked to me before all of this happened. He said, “I think I have an idea for you.” He had the idea of me going off to Iraq. That was not my idea. I was not sure I would do it, but I decided to go ahead and do that once Attorney General Mukasey came in and that is when I spent that year in Iraq near the very end. I came back for about four months at the end of the administration and worked on Rule of Law policy and law at the main justice from the main justice perspective. That is how that all happened. I am glad I got the chance to do it.
That all seems like a great opportunity and an incredible experience. The Iraq story is going to stay with me for quite a while. I look forward to sharing this with our readers because I think they will appreciate that too. You mentioned Chief Justice Phillips. You joined Baker Botts. I know you ascended eventually to be the head of the appellate section in the Austin office of that firm. Your desire to become a lawyer materialized. You ascended to the highest level position that one could think of, especially among Texas appellate lawyers. It is to be leading the appellate practice group in a firm like Baker Botts.
You have given me too much credit. I was the chair of the litigation section in the Austin office for several years. Aaron Street and I were the co-chairs of the Supreme Court and Constitutional Law Practice group. Macey Stokes was and is through the entire time that I was there, the head of the appellate section firm wide. I was glad to be able to carry very brief cases for some really storied people, Steven Tips, Macey Stokes, Tom Phillips and some great people. They became not only friends but mentors and teachers and eventually partners. It was a great place to learn how to be a Texas lawyer and to be an appellate lawyer, how to merge the different skills, state, federal, trial appeal, and all the different things that would go on was truly phenomenal.
That is a tremendous experience as well. I do not want to minimize it at all, but the arc of your career has continued to climb. Now you are a sitting Texas Supreme Court Justice, having been appointed by Governor Abbott. Was it in November of 2021?
That is right. November 10th is the day I took the oath.
We have not talked much on our show about the appointment process. From what I know of it, it is basically like a big job interview. The governor does applications for open seats and the governor’s office will interview candidates. You were the lucky one to be selected among a group of what I understand to be very highly qualified.
Think about the bar of our state. It is like being a clerk for Justice Scalia. One is glad to be considered to be part of the group that could be chosen, but one also knows how many other fine people there are it would have been just as reasonable for the governor to have selected. I am honored that he picked me. I appreciate that. He had no reason to. I have nothing to offer other than doing the best that I can. I did not come from his staff. I have not done anything that would say that, “Evan is the obvious person that Greg Abbott is going to pick.” It was an interesting experience to go through. The governor had a lot of things on his plate. The seat was open for quite a while.
There were a lot of special sessions this past time and that ended. The governor made his appointment. I was announced on November 1st. I had nine days to shut down my practice of many years, clean up my office, transition all my clients, file a brief, even in the US Supreme Court, less than 48 hours before taking office. All those things were compressed. One would think it would be nice to have six weeks to do. It was not the situation that I had. If you have a brief deadline that is 30 days, you will probably get an extension. If it is an emergency and it has to be filed in 24 hours, you find a way to do it. That is what happened.
I took the oath ahead of time. I was sworn in and immediately prepared for oral arguments, getting the weekly lists of petitions that have to be voted upon and looking at all the drafts that are coming in so I can vote on them if possible. Also, the political side of this is real, especially this particular year because I came in right before the filing period. The filing period opened four days after I took the oath. It was tough. I had to get people to help me get the signatures to get on the ballot, do all the things that one needs to do that I had never had to do before that are involved in being a candidate because that is how our state ultimately chooses its judges.
The primary began. The primary voting began on Valentine’s Day. It was very romantic indeed. That was 3 months and 4 days after I took the oath that people started to have the chance to comment on whether, in fact, you were much better off as a law firm partner. That possibility was there. I was the only justice with a contested primary. A very fine Court of Appeals judge put himself up for it. It would have been nothing wrong at all with the idea that he could have taken the seat, but I am glad that I got the chance to stay on the court and to be on the ballot.
November is coming and that means that part of what a new justice in particular is doing, especially if you join the middle of the term, you are trying to catch up on all the work. That is hard enough and prepare for the new things, start writing your opinions, learning how to be a candidate, trying to travel across the state.
We have to do things that judges never love to do. We have to do events to ask people to support the candidacy because 254 counties are a lot of counties and 30 million Texans are a lot of Texans. If we are going to have an elected judiciary, then the judges have to be able to get their message out one way or the other. Does that mean that any judge loves saying to someone, “Would you consider supporting my campaign?”
No judge that I know loves to do that. It is an awkward thing, but as an associate, I would do it myself and know that these are important positions that affect every Texan in so many ways. There are not very many people who really understand that we are running. They certainly do not think of us when it comes time to write campaign checks. It often is the legal profession, but not only that is willing to try to do that.
I think that my job, in part, is unlike, for example, my friends who are federal judges, who cannot do a lot of the things that we not only have to do but get to do. A big part of my job is to go across the state and try to talk about the role of the third branch of government and to explain to people why they should care about who their judges are. To talk about how to inform themselves about who their judges are and what makes for a good judge.
I think that the three of us on this discussion would probably agree that when it comes time to voting in the primary or general elections, there are a lot of names on that ballot and a lot of judges and courts that we never go into. It is hard for us to educate ourselves about it and imagine the hopelessness that many other people find when they are trying to go into the polls.
It means that sometimes there are election results that are not well explained by things other than arbitrary considerations, perhaps. That is unfortunate because if the people of our state are going to insist as is their right on having absolute control of who the judiciary of the state is, then they have to step up as citizens and become informed and educated about it so that important power of self-government is not squandered. If you want the authority, but there are certain things that come along with that to make sure that that authority is being used wisely.
I have enjoyed the campaign aspect of this job more than I thought. I have found that when I am with my fellow Texans, whether it be a small grassroots group, people who are not lawyers at all, sophisticated lawyers at big firms or solo practitioners, business leaders, business executives at a middle level, everyone is actually interested in understanding what the role of the courts is if you can get their attention and talk about it in a way that is responsive to the kinds of questions that they have.
Getting the attention is the hard part. There is only one of me and I do what I can, but with the number of voters that we have, even though it is much smaller than it ought to be, it is still a lot. The primary voters in a Texas primary are larger than the entire population of most American states. That means that trying to get these complicated messages out is time-consuming. Sometimes it even seems futile if you are talking to small groups. I hope that over the intervening six years if I am fortunate enough to win the election, I will be able to continue going and talking to people across the state.
It’s a treat to be able to go across this big, beautiful, diverse, and fascinating state and talk to people about the role of the courts. Sometimes I think people fear, “A judge is coming and he is on the ballot. He is going to have his paw outstretched, hoping that you will put something in it.” After an election, you cannot ask for it. I think there was some short period after the election. Judges can neither ask for nor receive contributions.We should try to make improvements and do what we can to make sure that our system maintains the vitality that it has, honors the promises of the past, and it's there for future generations. Click To Tweet
People will see us coming and know, “They want to be here,” not trying to raise money to be a candidate. They actually want to be the office holder who is talking to the people of Texas, who are the ultimate sovereign and have complete control over the entire government, including the judiciary about what the judiciary as currently constituted is, how it works, how it ought to work, and how citizens can play a role in making sure that the judicial branch and not just the other two branches are responsive to how our government has been set up so long ago.
For the fact that the Texas Supreme Court sits at the top of its own branch, it is probably the lowest profile statewide actor because I bet 99 out of 100 people could not tell you what they do.
I often will say, “If anybody in this group can name two of my colleagues, I will buy you dinner.” I do not have to buy any dinners. I am careful which audience I say that to. There is something about that that is not all bad. If the Texas Supreme Court were on the front page of the newspaper all the time, I would think that means something has gone awry.
It is important, really, that the judiciary be a humble branch. I do not mean to say that the judiciary should be a supine branch at all. Quite the opposite, but it needs to recognize that its role, while very important, is still very limited. Saying what the law actually is and applying it fairly. I know that sounds naive and almost Pollyannaish or like a formula, but it honestly is a cliché because it is true.
When judges go outside of the bounds too often, that is when they become known. That is when they become public figures that are, in fact, recognized. We have to find a situation in which judges are not doing things to get notoriety. At the same time, the people choosing who the judges are know something about how to educate themselves, even if they forget the name of all judges after they go to the polls and vote.
That is okay. That is maybe for the best. Courts should not be the first group that you think of when an average citizen is contemplating how the state is run, but it is still an important branch of government. It is a branch of the government. It is not just out there doing its own thing that exists separately and apart from the rest of the government. It is a third of the government.
For that reason, it is a challenging thing to figure out the best ways to connect those dots. I love trying. As I say, I have not yet found a group that has not been interested in talking about it. That’s very encouraging to me when I did not know what it would be like when I went out there. I have talked to lawyers groups for years and years. Most lawyers at least are interested in that, but I was not sure what reception I would receive in the wider public.
It makes me encouraged that if we can connect the dots in the minds of many Texans, we actually could make great strides in achieving some sort of reform. Whether it is just reform of the nature that the people themselves will have ways of truly being educated about the judiciary and continuing to cast votes the way they do or perhaps there will be change.
The graveyard of judicial reform efforts in Texas has many tombstones. That simply reflects that the current system is so ingrained in our system that formal reforms beyond the margins seem unlikely. That makes it all the more important that judges and citizens both take very seriously the role that citizens have in choosing the judiciary. It is a big task, not one to be tossed off and pick the name you like the best or leave it blank. It is such an easy thing to do. That is missing a huge chunk of the duty of citizenship, which includes great rights, but also has some real responsibilities.
Continuing with that theme of change and possible change, one of the reasons that it occurred to us, aside from the fact that this is all super interesting, one of the reasons we reached out to you to come on the show was because of some potential changes in how the court conducts its business. You have the advantage.
As a former practitioner now, you practiced in the Texas Supreme Court. You knew what it was as an advocate and what you had to do to go in and what the strategy was in terms of presenting petitions for review and then potentially briefs on the merits and how the court, from the practitioner’s perspective, viewed those.
Now that you are an insider, you have been tapped to talk a little bit about some potential changes in how that briefing process works that might impact strategy for Texas Supreme Court advocates. For me, it all started with a Law 360 article that quoted you about what seemed to be an irregularity in how the briefing was handled in the case. You were quoted at some length about it. To set this up, can you cover real quick what the issue was and what the topic was that you were quoted about in the article?
The real issue is when are we going to call for briefs on the merits, as simple as that. In our practice we are unique in doing this is that, as a general rule, we will not grant plenary review. People come to Austin. They have an oral argument. They know a decision will be issued. We do not tell them whether that is going to all happen, whether we will even take the case until after they have written full-length briefs on the merits.
After which, statistically, the odds are that the answer will come back, “Thank you for all of those many months, all those many long briefs, all those tens of thousands, sometimes hundreds of thousands of dollars of billable time, all the delay, the lack of finality. Thank you for all of that, but we have decided to deny the petition. Off you go.”
That always seemed strange to me. It seems like washing the dishes before dinner to save time later. Think of whatever else you want to do. It does not make a lot of sense to ask people to brief the merits of something when they know you are still trying to decide whether to take the case. To that end, the court several years ago put together a small committee.
It was me, private practice lawyer Evan Young, then Court of Appeals Judge Brett Busby, and Melissa Davis Andrews had been a staff attorney at the court and was very well versed in the court’s process. This little three-person committee put together some recommendations to the court on considering some changes to the process to make it a little bit more like the US Supreme Court’s process, which I think is far more rational.
They have a cert petition that you have to file. At the end of the process, at the cert stage, they either say, “We are not taking your case.” They normally say that and everybody knows. We are not spending any more money. We are not spending any more time. We know what the answer is. We can go about life or they say, “We are taking this case.” At which point, you know spending time on the brief, on the merits, it is a brief on the merits as opposed to in our court where it normally is a glorified petition for review, an on steroids version of it.
Sometimes they are very similar indeed. The petition and the ultimate brief of the merits are largely the same, which makes some sense because the petitioner is still just trying to persuade us to take the case. Some clients are hesitant to spend that much money or time on filing briefs on the merits that are likely to be denied. Lawyers might be hesitant to tell us some things they would tell us if we had already promised to take the case because it might make it seem more boring.
“I better not tell them this because then they are going to think that the case is not as interesting as they might have thought it was at first. They will not take it, so we will not say it.” The respondents have the same incentive on the other side. They try to make the case as boring as it possibly can be. Maybe pull some punches there in filing their response brief on the merits.
I often tell people that I can remember at the very beginning of my time sitting up on the bench and flipping through the briefs as the advocates are coming up and having some notes written. Heading number one, the brief on the merits from the respondent, the court should deny the petition for review. That is a rational thing because when that is being written, the audience for whom it is being written are judges deciding whether to take the case, but once we take it, what have you got? You have got a brief on the merits that the lead argument is, “Do not take the case,” which by virtue of us being in the courtroom and an oral argument about to start means that ship has sailed.
That is what your lead argument was. That is not a great position to be in. Wouldn’t it be better for everyone if we instead had a petition that was a little bit longer, so we do not have to have unbriefed issues? That would give us enough. I can describe in a little bit more detail how this would differ from our practice and how it would be different from the US Supreme court’s practice.
Give us enough so that at the end of it, we either tell people, “Great, thank you, but the decision of the Court of Appeals is now final,” or to say, “Thank you, we are taking this case.” Now, start your briefs on the merits. You know that every minute you research and bill is worth it because it will lead to a decision in Southwest third. You are coming to Austin and you are going to be before the nine justices.
I think that the mindset in writing a brief on the merits in that situation would be very different than it is where you just get this automated order saying, “We would like some briefs to merits.” That means that three justices wanted to hear about it. Maybe even they will not vote for an ultimate grant, but even if they do, there is no guarantee you will get a fourth. If all of that happens and we have all been in this situation, you do the briefs on the merits, and then it goes into the court’s inner sanctum. It is just this big black hole from the perspective of the outside for a long time. We are working it up. We have a study memo prepared, all of that. We vote on it and eventually, we will grant it.
We will set it for an argument at some point, which now may be a year from when the brief on the merits was written. Think about how stale some of the law is, how stale the lawyer’s memory is. You have to ask the client, “We’ve got a lot of things to fix. We probably cut some corners on that brief on the merit,” or, “A lot of the law has changed,” or, “I am going to have to do a lot of work to get myself back up to speed.” Somebody has to pay for that, whether it is the lawyer or the client. All the things that have changed, the court does not have access to because the brief is stale and we were relying on it when we granted the petition.
Wouldn’t it be better if we had a brief that came in very close in time to when the argument would be? It would be most focused on what the case’s merits were about. It would be close in time so that you would be ready to go when the oral argument is scheduled. It would allow you to use the best existing law, the most recent law from our court, the US Supreme Court, and other courts. It would not entail any waste at all. The court would be saving so much time by not having so many full-length briefs that ultimately are denied.
Think about how many thousands of hours of court time are spent on briefs that will not affect the jurisprudence at all because we just deny the petition after going through all of that trouble. In exchange, what is the thing that would cause us not? I think I have been painting this in a way that I would like to think at least seems reasonably persuasive. Why aren’t they doing that? That sounds so sensible.The law is fragile. It's a lot easier to tear apart than it is to build up. Click To Tweet
As I understand it, the promise that had been made years ago when the court switched over to a petition process instead of having a writ process was we need to have the petitions be short because we will promise that we each will read them all. I think the court is keeping that promise. Going from a 4,500-word petition to something closer to the 9,000 that the US Supreme Court has would entail a substantial increase in time at the outset.
I think that would be counter veiled by the savings later on by not having all those full-length briefs. Even aside from that, the proposal that our little committee made, and that I think is a good one, is this. At the beginning of this new petition, before you even have the table of contents, anything other than maybe the statement of counsels so that we can deal with recusal issues and all that, take five pages or whatever it is. We can deal with the specifics later.
Take some decent chunk of space and give us your elevator pitch. It can be an executive summary. It could be a teaser. It could be an introduction. It could just be a summary of the argument. Tell us why this case is worthy of one of those very precious slots, we have about 70 slots on our plenary docket that will have an oral argument.
Why should this be one of them, or why should it be one of the additional 30 to 50 per curiams that we have been taking? Why should we care about this? If every one of the nine justices promises, we will, with care, read that preliminary section. If you cannot persuade a justice of the Supreme Court with that type of an invitation to turn the next page, the petition should be denied. I think that would discharge the court’s promise to the bar.
On the other hand, in the instances in which, “That sounds pretty good,” I am going to turn the next page. I don’t have to call for more briefs in order to find out what the answer to this unbriefed issue is because it is now in this document that has been filed. At the end of that, we will have everything we need to know whether to grant the case or not, saving all of this time, money and resources, still allowing lawyers to write good, detailed briefs. Transforming the appellate advocate’s job from writing lots of briefs that are based in this murky sense of you do not know what is happening in the court to very focused briefs where you know exactly what stage you are in, what you need to say, and what will happen if you cannot be persuasive about points A, B or C.
The US Supreme Court, when they do procuring opinions, which have the effect of binding the entire country, it is the same law, the same effect as any other US Supreme Court decision, those are based only on the petitions. They do not call for full merits briefing for a per curiam as a general matter at all, which tells you that with 9,000 words roughly, it could be more, it could be less, that is enough as a general matter to answer all of those questions.
“Should we take the case? Should we per curiam?” We would always reserve the right to call for full merits briefs before choosing whether to grant or deny, shifting the default more towards what I have described. That then leads to what you described. What is that spurred comment on this practice? The rules already allow us to do this. It is just that with a 4,500-word petition, it is hard in most instances because parties typically will have some unbriefed issue, whether that is a wise choice or not. Often the case, 4,500 words is not enough to kick all of the tires to make sure that jurisdiction is secured and make sure that the relevant conflicts in the Courts of Appeals exist.
Sometimes it is, though. It is just so plain. We are taking this case on the merits that there have now been a couple of instances in which the court has said, “We have this authority. There is no reason for us to force the parties to do full briefs on the merits only to then say what everybody ought to have known all along. Yes, we will take the case.” It is baby steps. I think that we could use that tool more often, but I do fear that without changing the nature of the petition a little bit, we are depriving a lot of cases of the opportunity to participate in that way that otherwise would.
Is the court considering issue grants?
That is one of the things that was part of that study group. I think that is even a little bit further off, however, there are some cases in which you will see the court will say perhaps in a footnote or a paragraph, “This issue is also raised, but we find no reversible error in it without endorsing the reasoning of the Court of Appeals, affirm as to that ground.”
It is a sort of issue grant, but it is a less satisfactory one in some ways. I always would have loved as an advocate to know what is it that motivated the court to take this case? An issue grant is one way to do that. There may be other ways, it is logistically tricky.
But one could imagine a situation in which the court grants the case and at some point before oral argument, maybe says, “The counsel would be well-advised to focus their preparation on this issue,” or at the very least, “Please make sure to fully address X.” That might be another way of achieving a similar goal, but that does raise this question that I put a finger on a moment ago, all these unbriefed issues and mini issues.
If our court’s tradition is, and it is, that if we take a case and it raises a number of issues, all of those issues are before the court, and we must resolve anything that could affect the judgment. Sometimes we do not have to resolve them all because resolving this issue means that the rest of them are essentially mooted.
That is fine, but if we are expected to resolve all of them, what consequences do you think that might have on a judge trying to decide whether to be one of the votes to grant the petition for review? There is only one issue that really is jurisdictionally set. Our jurisdiction is tethered to that, which is important to the jurisprudence of the state. If that is there, we can take the case.
All the other five issues perhaps that have been raised are now within our jurisdiction because the case is within our jurisdiction. Those independently would not have been worthy ever. You would have been denied. The balance that people ought to be thinking about is, “I know that I do not want to miss a chance to win.” I get that.
I was there making these exact sorts of calls, but I always tried to limit the number of issues. It would be interesting to see if there is a study on this, that the fewer the issues, the more likely there is that the court will grant, not the opposite. “Maybe so-and-so’s issue is this issue.” Maybe they will come together and we will have four. Maybe that does sometimes happen, depending on the issues. I think it is rare. I think that more if I see something and I like this issue, but I think, “I may never be able to get to or it is going to get swallowed up in these other five.”
The thinking sometimes is, “If this issue that I am interested in is that important, maybe it will come up in another petition in which it is not going to be strangled by all of these other things.” One way to solve it is to go ahead and expressly say, “We are going to grant on certain issues,” like the US Supreme Court occasionally does. Even its default is to grant whatever was given, but it is much more willing to subtract issues and occasionally to add them. Another one is to do something like I described.
Another, though, is for the bar to constraint itself a little bit more and consider whether or not it truly is necessary to raise 6 issues, 8 issues or even 4 or 5 sometimes. That is for each client and each lawyer to decide together, but if the goal really is to get the court to grant review, one should think about that. This is going to be the case when they look at that study memo and see all of this stuff.
Only one thing truly being important to the jurisprudence of the state, will that encourage the court to take it or not? I cannot speak for my colleagues. I cannot even truly speak for myself because there have been a few times in which I have voted to grant something, despite my discomfort with that. It has become more common to think, “Maybe a statement concurring in denial would be a good signal to people about what matters about this,” that thought goes through my head sometimes.
It is useful. What I am struggling with a little is how this is a committee recommendation. You have the rules of the appellate procedure. They confine us to some degree to formalize it. It seems like a rule change would be advisable when it comes to word count. In the meantime, it sounds like what we might want to tell practitioners is this is an approach to things that you may want to consider.
Ordinarily as you point out in merits briefs, so often as a petitioner, you are still just trying to get the court to take the case. It would definitely be a shift in strategy on the merits briefing and on the petition, too, especially if you had more words to dive deeper into what the real issues are. It seems like we probably are talking about before this becomes fully implemented, we probably are talking about a rule change.
Everything I am describing would require a rule change. The only thing that does not require a rule change is these baby steps that I am describing where the court uses authority it has always had to grant cases based on the petition. I think it is going to be hard to do in a lot of cases. I guess the bottom line is nobody should be worried. The existing practice is still there. The normal default is still do your petition, we’ll call for full briefs on the merits and then we will decide. That is still there.
I doubt we would ever surrender through the rules, but who knows? I doubt that we would surrender the authority to require briefs in the merits before deciding. If we wanted to normalize the approach that every other state supreme court that has a discretionary review and the US Supreme Court and make it something more like that, we would have to change the rules to allow for greater word length to describe the process in greater clarity. That has not happened.
Nobody should worry that they are behind any curves. We have plenty of discussions. Nothing will happen in the dark of night. In fact, one of the reasons I wanted to talk to you all about this is because I think it is a conversation that needs to happen. I clearly have some strong views, but I am persuadable. If, for some reason, Texas is right to be the only state that does it this way, it is a good thing to have lots of people spending huge amounts of money and time to have a petition denied after a full briefing.
I am persuadable about that. I think all my colleagues are, and we are conservative in the sense of the way the court ought to be conservative. We are not going to make any formal changes unless we are pretty confident that they are workable and an improvement. We do not like flipping back and forth on things. Inertia is certainly on the side of the process staying as it is.
However, even as that happens, even as we are talking about this and expanding the conversation, it is certainly true that practitioners should know that if they have a case where they would like to know, “Are you going to take this or not?” we have examples of doing that. I would imagine that somebody could write a 4,500-word petition and say, “I would like the court to grant or deny. I think that we are giving you everything that you will need to know whether to take this case or not. We are very consciously not throwing in unbriefed issues.”
“We are very consciously briefing jurisdiction and whatever else. We are looking at all the factors that go into it. We think this is enough, so please take our case, but tell us you are going to take it before we do the briefs on the merits so that we can give you the best briefs on the merits.” That would not go unnoticed, I think. I can’t promise the court will take them up on it, but if you’ll ask for it, they are certainly more likely to be into that category of cases than those that don’t. Hopefully that helps.
There is a lot more discussion to come. We will maybe stop there. Thank you so much for offering up your view on that. I think that does help a lot.
Let’s keep the conversation going not just here, but in lots of other places. Across the state, people have strong views and a lot of it is just being able to make sure we understand what each other is talking about. I think there has been some confusion about what is even contemplated. The realm of possibility is wide open, but I do want to end just by reiterating what you said.
There will be a lot of discussions, but the one thing I can confirm, I think I can speak for my colleagues about this one thing, and that is we are not going to do anything dramatic. We are not going to change the rules without it being well-publicized, without people having many opportunities over an extended period to talk, listen, learn and exchange ideas.
I hope that happens and the people will think hard about what it is, and think what the hard questions are and raise them. Talk about them and debate them because we ought to have the best functioning appellate courts in the country. There is no reason why we should not. It may turn out that we do already, but I have some doubts about that. I think we could do a little bit better and make things better for the state, the law, the people, the courts, and the practitioners.
Thank you so much. We always like to end with either a tip or a war story. I wonder if you have anything you want to offer as we close out here.
I will say this as far as a tip goes. Having been an appellate practitioner for many years, I think of these briefs that I write. Each one of them, one hopes, will be just a work of art, and sometimes it is more rather than less or less rather than more of the aspiration. The amount of energy that can be spent on choosing the right word is good as long as one recognizes that the judges and the Supreme Court staff are reading so many things every week.
I was sworn in on a Wednesday. We had a swearing-in, speeches and a reception, and the chief justice said, “Congratulations, your votes are due at 1:00 tomorrow.” I laughed and he is like, “No, I am serious.” What happens is on a Thursday, our votes are due at 1:00. We have this conveyor belt of things every single week, this long list of things to vote on. We have things that come in, emergencies for stays, mandamuses, whatever. During the term, certainly, we are working on reading all the briefs, all the new amici that come in.
By the way, I did not get to this, but I encourage people to think hard about whether or not there are cases on our docket that they could speak to because it might affect something that they care about even if the case itself doesn’t, the collateral consequences of a decision in one area. If it looks like the parties are litigating about the right to a jury trial or whatever might go quite beyond that, we do not get nearly as many amicus briefs as I had thought.
I think that a true friend of the court tight briefs could be a real thing to advantage the quality of law in our state, in our court and everywhere else. We are reading all of these things and it is amazing. My eyes have gotten worse in the time I have been doing this. It helps the reader so much with such a sense of confidence when a document is written with great clarity, starting from the table of contents.
One time I was reading a petition. I was reading the table of contents. I always do. It only struck me after I was done that I was reading the table of contents because it was so well done, even with respect to the facts and laying it out, that I had such a sense of what the case was about. It gave me great confidence that whatever the ultimate vote would be, however it should turn out, I was getting the work that was facilitating my ability to absorb it meaningfully, quickly and correctly.
Clear writing, good organization, all of these things that we learned from our first week of law school turn out to be every bit as important as we think. Vague headings, statement of facts and then just a bunch of stuff, or the Court of Appeals should be reversed and then just lots of unbroken texts with long sentences that do not connect well, aren’t well signposted, have the opposite effect. It makes it hard to figure out what am I looking at? What are they trying to tell me about what the law is and what it ought to be?
Sometimes it is from someone who knows so much about that area of the law. I do not mean to suggest that it is an incompetent lawyer who does it. Sometimes it is the opposite. Someone who is a true expert in some field but has not been able to take that next step of thinking about what the audience for these different types of filings might be, and how to make it digestible for the purposes that we are reading it. Whether we need to know about a call for a response or not, or we have to decide whether this links up with other cases that are in the pipeline, what is really going on?
I urge people to consider, especially if it is an important case, having somebody else look at your filing, someone who has not spent even one minute on this case, and this is not always possible. I recognize that. One has to try to do it yourself if you do not have someone else who can pass it on to, but from the perspective of, “I know nothing about this case. Does it instantly tell me what is going on, why the court ought to regard it as something that is worthy of staying on the conveyor belt?” Given that the default is if, unless a justice takes it off, it will go into the denial bin.
Hypothetically speaking to your associate or your partner, colleague, friend, whatever, did you get lost at any point, or did you want to keep turning those pages? Did you find it easy to figure out what we were asking for and why we thought the court of appeals was wrong? Getting honest, good feedback like that from people will take the expert in the law that I was describing that final step of having a truly persuasive document in the context in which it arrives. It is never the vacuum that we, as lawyers, think when we are working on this one case, and we are in a vacuum, we are in that one case.
The assumption is that the court will get it and they will also be in a vacuum, and they will be reading it with the same goals and the same time freedom that the author and the client have, but it is just not the case. It makes me a little bit sad. As a lawyer, I love the idea of drafting these things and imagining whoever was sitting back in a nice, easy chair saying, “Wasn’t that a nice little turn of phrase?”
We would love to do that, and occasionally we can, but normally we’re having to meet deadlines to keep ourselves honest. We have made that promise. We are going to read all of the lower court opinions and all of the filings in a case, and there is only so many hours in a day. Doing a good job of keeping us marching through it can make the difference between a grant and a deny.
Justice Young, this has been just tremendous. We have enjoyed not only your tips and war stories but hearing about your career. Thank you so much for spending the time with us.
It has been a true pleasure here. I am glad that some of my colleagues have been here before. We usually do everything by seniority. Don’t tell any of my more senior colleagues that you invite on that they are not coming before the new guy, but it is a real pleasure. It was fun to spend some time with you two in particular. Thanks for what you do, for doing this for our state and our bar. I look forward to talking to you all again before too long.
About Justice Evan Young
Justice Evan A. Young was appointed to the Texas Supreme Court in November 2021 by Governor Greg Abbott. Justice Young clerked for U.S. Supreme Court Justice Antonin Scalia and served as Counsel to the Attorney General at the U.S. Department of Justice, during which time he spent nearly a year based at the U.S. Embassy in Baghdad, Iraq, helping lead the U.S. Government’s Rule of Law mission. He joined the law firm Baker Botts L.L.P. and served as chair of the firm’s Supreme Court and Constitutional Law practice group. Justice Young, who served as a member of the Texas Judicial Council from 2017 until his appointment to the Supreme Court, is a former chair of the National Center for Missing and Exploited Children Texas Regional Office, a member of the Supreme Court Advisory Committee, an elected member of the American Law Institute, and an adjunct professor at The University of Texas School of Law. Justice Young received Bachelor of Arts degrees from Duke University and from Oxford University, where he was a British Marshall Scholar, and his law degree from Yale Law School. He is a graduate of Tom C. Clark High School in San Antonio and now resides in Austin with his wife, Tobi, and their daughter.
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