February 1, 2016

Some judicial decisions — those covered on the front pages of newspapers and discussed on TV — are eagerly awaited by millions. But most cases do not involve hot-button issues that generate mass interest; typically, they concern matters so technical or arcane that no one beyond the immediate parties and legal specialists ever read them. Spicy or bland, however, every case is equally subject to certain iron rules — in particular, the rule that procedural and jurisdictional barriers often determine whether a court can decide the case at all.

Failing to understand these threshold jurisdictional questions under the constitution can generate wildly misleading assessments of decisions that turn on jurisdiction rather than the merits of the question before the court. One current example is the Texas Supreme Court’s decision last June in State v. Naylor, a same-sex marriage case. Or at least, it would have been about same-sex marriage, if the court had had jurisdiction to decide the case. In the opening paragraph of the Naylor opinion, the court set forth the issue before it, stating that is must determine whether the “State lacks standing to appeal the judgment.” On a 5–3 vote, the justices — all eight judicial conservatives, all eight Republicans — held that they could not reach the merits. Why? The state was the only party that appealed, and the court’s majority held that the state lacked legal standing, a necessary component of jurisdiction, because under established rules of court procedure the state had sought to intervene in the case too late.

We express no opinion on whether the majority’s jurisdictional analysis was right or wrong. Our sole purpose here is instead to make the key point that the majority opinion (and Justice Willett’s dissent, for that matter) had nothing to do with the constitutionality, or lack thereof, of Texas’s prohibition on same-sex marriage.

What the Texas Supreme Court did in Naylor

Naylor involved two women who had married in Massachusetts in 2004, where same-sex marriage was legal. They later moved to Texas, where the state constitution prohibited same-sex marriage. The relationship soured and one of the women filed for divorce. The other woman initially contested it, arguing that Texas courts could not grant it precisely because, in the eyes of Texas law, they weren’t married. Those who aren’t married can’t divorce. On the other hand, however, if Texas’s prohibition of same-sex marriage (or at least Texas’s refusal to recognize other states’ same-sex marriages) was itself a violation of the U.S. Constitution, then divorce was very much on the table. The women eventually reached an agreement, and the trial court granted the divorce, despite some misgivings about whether Texas law permitted such a remedy.

Naylor therefore presented a highly controversial and important question about the integrity of Texas’s law of marriage. Most people have focused on that potential question when talking about the case and the Texas Supreme Court’s eventual decision. But that misses the crucial starting point for any case — jurisdiction. In Naylor, the state was seeking relief from what it reasonably regarded as the trial court’s implicit recognition of same-sex marriage by granting a divorce to a same-sex couple. No one — certainly not the majority in Naylor — doubts the state’s right to intervene in a case to defend the integrity of state law.

To the majority, the problem was that the state didn’t intervene in time. It held that, if the state wishes to intervene, it must do so before the trial court announces its judgment or, failing that, ask the trial court to exercise its discretion to reopen the case and allow the intervention. The state did neither, even though its lawyers were monitoring the litigation and physically present in the trial court.

In other words, the majority explained, the state is bound by procedural rules just like everyone else. In its view, the state’s failure to follow the intervention rules meant that it lost the ability to intervene. Without a valid intervention, the state was not a party, and — just like every other non-party — had no standing to appeal.

This rationale divided the conservative court. In dissent, Justice Willett argued that the state, represented by the attorney general, is not like every other litigant. Rather, he wrote, the attorney general uniquely represents the interests of all Texans.

Because of the jurisdictional debate, seven of the eight justices participating did not address the constitutionality of Texas’s same-sex marriage ban. (Justice Devine did. He joined Justice Willett’s jurisdictional dissent, but also wrote a separate dissent, speaking for himself, arguing that the U.S. Constitution posed no obstacle to Texas’s marriage laws.) One week after Naylor, the U.S. Supreme Court preempted the issue in Obergefell v. Hodges and decided the constitutionality of the issue under the federal constitution. But if there had been no Obergefell, the most likely result of a Texas Supreme Court case (one with jurisdiction) would have been a unanimous decision upholding the Texas ban on same-sex marriage. We think it likely that all eight of the participating Texas Supreme Court justices would read the Constitution much more as Chief Justice Roberts and Justices Scalia, Thomas, and Alito did than the way that Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan did. Indeed, the Naylor majority could not resist offering a clue, emphasizing that those justices “ha[d] no quarrel with Justice Devine’s analysis,” which forcefully defended the constitutional authority of a state to prohibit same-sex marriage.

One can reasonably argue about what the rules for intervention by the attorney general in private litigation are, or ought to be. But one cannot reasonably argue that one’s position on that question has anything whatsoever to do with same-sex marriage — or any other substantive issue. If the attorney general had attempted a late intervention in a case about taxation or environmental control, there is little doubt that the five justices in the majority would have written essentially the same jurisdictional opinion. And one would expect that the three judges in dissent would still be in dissent; judges could not apply a different jurisdictional rule depending on their views of the merits of the case.

The Benefits of Jurisdictional Caution

This distinction between jurisdiction and merits is no trifling matter. Firm, neutral jurisdictional principles — principles that will apply regardless of whose ox is gored — are indispensable to a government defined by the separation of powers and the rule of law. After all, if courts could ignore jurisdictional hurdles whenever they really wanted to reach an important question, there would be no limit to the judiciary’s ability to insert itself into any issue, at any time. A self-governing citizenry requires a strong and impartial judiciary — but one that is limited to resolving actual cases between real parties who may lawfully litigate specific matters. A principled refusal to exercise jurisdiction generally reflects conservative judicial values, because it is a form of judicial restraint.

This does not mean that conservatives always agree on any given case — just as the conservatives on the Texas Supreme Court did not all agree in Naylor. Nor does it mean that judges can invoke judicial restraint in order to dodge a case that is politically inconvenient — when jurisdiction exists, judges have a constitutional duty to decide it. But the limiting principle of jurisdiction should make us hesitate before castigating conservatives when they rigorously apply the law of standing even when that means a “liberal” result remains temporarily in place.

Consider, for example, Hollingsworth v. Perry, another gay-marriage case, that the U.S. Supreme Court decided two years before Naylor. Hollingsworth was decided 5–4, with Chief Justice John Roberts and Justice Antonin Scalia casting the deciding votes. The decision –written by Roberts, joined by Scalia — found that the proponents of California’s “Proposition 8,” a voter-enacted initiative that amended California’s constitution to ban same-sex marriage, lacked standing to appeal a trial court’s judgment that found Proposition 8 to be unconstitutional. (Notably, leaving that statewide ruling in place was infinitely more consequential than leaving a single, non-precedential divorce decree in place in Naylor.)

Many disagreed with Chief Justice Roberts’s and Justice Scalia’s jurisdictional analysis in Hollingsworth, including conservatives like Justices Thomas and Alito. But so far as we are aware, no one alleged that Roberts and Scalia were actually supporters of same-sex marriage, or even that their vote was a cowardly dodge unrooted in legal principle. In fact, two years later, Roberts and Scalia each penned powerful, vehement dissents on the merits when the five-justice majority in Obergefell v. Hodges invalidated state law defining marriage as between a man and a woman.

You may agree or disagree with Chief Justice Roberts’s and Justice Scalia’s vote against standing to appeal the district court’s decision in Hollingsworth. We express no opinion on that any more than on the jurisdictional result in Naylor. But whether right or wrong, they voted based on a principle that had nothing to do with same-sex marriage — a principle that will apply in any other case in that procedural posture, regardless of what the case involves.

And establishing a clear rule of standing is, at the end of the day, all that Naylor does. Even if the majority in Naylor was wrong, the effect of that decision is quite modest. Its sole legal holding makes absolutely clear to all future attorneys general how and when they need to intervene if they so desire. The fact that eight conservative justices of the Texas Supreme Court disagreed about the application of that procedural rule doesn’t make any of them less conservative or less faithful to the rule of law — it shows that our state’s highest jurists must carefully evaluate even dry, dusty questions of jurisdiction with the sober judgment demonstrated here. That’s something of which the people of Texas can be proud.

— Scott A. Brister is head of Andrews Kurth’s appellate section and a partner in its Austin office. In 2009, he retired as a Justice of the Supreme Court of Texas after 20 years of service as a Texas judge. Dale Wainwright is the managing partner of Bracewell’s Austin office. In 2012, he returned to private practice after 13 years as a Texas judge, including a decade as a Justice of the Supreme Court of Texas.


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