U.S. Supreme Court has been messing with Texas a lot lately
Recent rulings are seen as setbacks to the state’s conservative initiatives
AUSTIN — No sooner did the U.S. Supreme Court last week strike down key state abortion restrictions than the internet was whooping — or weeping — over a photo of Justice Ruth Bader Gins- burg underscored with the words, “Messed with Texas.”
It is not the first time the Lone Star State has found itself on the wrong side of the U.S. Constitution in the court’s eyes, with Ginsburg among those siding against policies embraced and driven by Texas Re- publican leaders.
The nation’s highest court has shaken the foundation of those policies and in doing so has highlighted the enormous impact the next president will have on Texas and the nation with at least one justice appointment.
“I think that Texas is sort of ground zero for some of these issues, and the Legislature is willing to pass legislation that may or not be constitutional, more so than some states — not all, but some,” said Carl Tobias, law professor at the University of Richmond.
The Supreme Court’s 5-3 vote against the state’s abortion restrictions came a year after it voted 5-4 to affirm the right of gay people to marry, a decision that threw top Texas Republicans into a tizzy because it did away with a ban they had championed.
In another closelywatched case, the court on June 23 deadlocked on President Barack Obama’s plan to protect millions of undocumented immigrants from deportation.
Texas was at the forefront of the challenge to Obama’s executive order, and officials celebrated the 4-4 vote that left standing a lower-court decision to halt it. However, the case is not over, the decision set no precedent, and the issue may come before the court again.
The high court rulings give fire to supporters of presumptive Democratic nominee Hillary Clinton and presumptive Republican presidential nominee Donald Trump.
The next president is likely to appoint a replacement for the late conser-
vative Justice Antonin Scalia — unless Clinton wins, and Republican senators decide to consider Obama’s lingering nomination of Merrick Garland to stave off a more liberal nominee. Potential retirements would give the next president more court appointments.
“Americans get an annual civics reminder every June, when the blockbuster cases are decided, how central the Supreme Court is to American life. Conservatives, dismayed over big losses last term, began this year optimistic for a transformational term,” said Texas Supreme Court Justice Don Willett, whom Trump has listed as a potential high court nominee.
“Justice Scalia’s death dashed those hopes and profoundly altered not just the Court and the law, but the country. His passing portends a seismic, oncein-a-generation re-altering of the Court’s ideological balance.”
Texas’ “unique combination of economic dynamism and cultural conservatism puts us squarely in the national legal fray, often suing and often the one being sued. The postScalia court has lurched leftward and isn’t as hospitable to conservative cases and causes,” Willett said.
The next president “will likely set the Court’s philosophical trajectory for a generation,” he said. Immigration ruling
Texas also has seen action it likes from the Supreme Court, including its decision to temporarily block an Obama administration emissions rule. In addition, the state’s strict voter ID law was implemented after the court tossed a federal Voting Rights Act provision that would have required a fed- eral review first. A court challenge to that state law is ongoing.
The Supreme Court upheld the Obamacare mandate for individuals to have insurance in the face of a challenge by Texas and 25 other states. The court refused, however, to allow states to be kicked out of the Medicaid program if they refused to expand it — an important victory for states like Texas.
Even when Texas wins, it can feel like a loss to some Republicans. When the Supreme Court upheld the University of Texas at Austin’s consideration of race as one factor in admissions, Paxton expressed disappointment.
“The University of Texas is one of the finest educational institutions in the world. The opportunities it offers should be available to all students based on their merit, not the color of their skin,” Paxton said, noting he did not represent UT before the Supreme Court. ‘Beyond rational belief’
The cost of litigation has been high. Texas has spent more than $1 million on litigation related to the abortion restrictions, according to Paxton’s office, and $6.1 million on more than 40 lawsuits against the federal government since 2004. It has spent another $3 million-plus defending the voter ID law.
In the abortion case, the court rejected state requirements that clinics meet hospital-like standards and that doctors who perform the procedure have admitting privileges at nearby hospitals.
While Ginsburg did not write the majority opinion, she was a natural for the “Messed with Texas” meme due to her sharp questioning during arguments, tart concurring opinion and “Notorious RBG” reputation for championing issues such as voter rights. She called it “beyond rational belief” that the abortion restrictions could protect women’s health, as maintained by state officials, saying they instead would force women into unsafe circumstances. Eyes on 2016 winner
It was a blow to statewide Republicans, who looked toward the presidential election and the next legislative session.
Paxton campaign spokesman Matt Welch said the attorney general “will work tirelessly to defeat Hillary Clinton because if she were to get elected, her Supreme Court nominees could have a devastating impact on America for generations to come.”
Several Republican lawmakers in the GOPdominated Legislature said they plan to push new abortion regulations in the 2017 legislative session, and Lt. Gov. Dan Patrick said they’ll see what can be done “in a way that the Supreme Court can approve.”
To Democrats like state Rep. Jessica Farrar of Houston, it’s a disheartening effort to “pander to the base” that votes in GOP primary elections.
“They have just wasted millions of dollars on these frivolous suits at a time when they say we don’t have money for the public schools we need so badly, at a time when children in foster care have been neglected for so long,” said Farrar, who helped lead the unsuccessful fight against the abortion restrictions in 2013. “It’s misplaced priorities. … They’ve never cared whether anything is actually constitutional or not.” ‘Party primary prison’
Sen. José Menéndez, D-San Antonio, said Republicans are using “red meat” issues to please their primary voters, who effectively decide elections in GOP-drawn districts regardless of whether a Democrat is on the general election ballot.
“They’ve created their own party primary prison. … If they don’t prove they are the most conservative, they may not survive the next primary,” Menéndez said. “At some point, we have to just say, ‘Wait a minute, time out. What about the issues most Texans care about?’”
Lobbyist Bill Miller, whose firm’s political action committee is a big campaign giver, said there is a bright political side for Republicans whose policies have been tossed, including the ability to cite the court action in fundraising.
“It will stir the pocketbooks and emotions of fellow travelers,” Miller said. “They’re taking this lemon and are going to turn it into the biggest glass of lemonade you ever saw.”
They may have less luck when it comes to stirring the Supreme Court, a prospect illustrated by a New Yorker cartoon after the abortion decision depicting one female justice telling another, “Admit it — it was kind of a bonus to mess with Texas.”